Modern Legal Drafting
Modern Legal Drafting
Modern Legal Drafting
although, paradoxically, they were adopted as the model for municipal leg-
islation in Australia.
114
Anotable recent development inCanada has occurred inthe area of secu-
rities law and practice. There is now a growing awareness of the benets to
be gained by requiring prospectuses and other securities-related documents
to be in plain language.
115
For example, the British Columbia Securities
Commission has announced plans to incorporate plain language require-
ments into its securities rules. The rules will require certain records to be
in plain language. Under proposed rule 8, a record is in plain language if
its form, style and language enable an ordinary investor or client, applying
reasonable effort, to understand it.
116
What judges have said about plain English
We should not leave this survey of the movement towards plain legal
English without mentioning the efforts of judges. Throughout history,
many judges have praised the virtues of plain English. In times past,
English judges such as Coke, Blackstone, Stephen, and Atkin spoke and
wrote in clear, forthright terms. In modern times, English judges like
Denning, Staughton and Hoffmann have shown the same qualities. So
have judges from other English-speaking countries: for example, Windeyer,
McHugh and Kirby from Australia. Some judges have extolled the virtues
of plain language in law generally.
117
Some have argued for plain language
113
Alberta Municipal Government Act 1994 cM-26.1.
114
Notably, the Local Government Act 1993 (New South Wales), mentioned above, p. 97.
115
See Douglas M. Hyndman, Plain language means better regulation (2004) 51 Clarity,
p. 14; Robin Ford, Plain Language at the Regulator (2005) 54 Clarity, p. 35.
116
As at February 2006, the proposed rules had not come into operation.
117
For example, Justice M. D. Kirby (Australian High Court), Is Law Poorly Written? A
View from the Bench [1995] New South Wales Law Society Journal (March), p. 56; Justice
M. H. McHugh(AustralianHighCourt), The Growthof LegislationandLitigation (1995)
69 Australian Law Journal, p. 46 (qualied support); Chief Justice de Jersey (Queensland
Supreme Court), ForewordtoClear andPrecise: Writing Skills for Todays Lawyer (Brisbane:
Queensland Law Society, 2000); Chief Justice Beverley McLachlin (Canadian Supreme
Court), Preserving Public Condence in the Courts and the Legal Profession (2003) 29
Manitoba Law Journal, pp. 2845.
110 Modern Legal Draf t i ng
judgments.
118
Some have praised the qualities of plain language documents
that come before them for interpretation.
119
And some have offered con-
structive comments onthe thorny issue of howfar toapply settledcase lawin
interpreting plain-English revisions of statutes and standard documents.
120
Nevertheless, direct judicial advocacy of plain, modern English in legal
writing as a central theme is relatively rare at least in published material.
Indeed, some judges have openly doubted whether plain language is appro-
priate for complex subject matters.
121
Their comments stand in uneasy con-
trast to the judicial criticisms of traditional drafting we outlined in Chapter
2. They alsoseemtobe out of kilter withsurveys that showthat judges favour
the use of plain English in documents that come before them in court. At
least, that is the evidence from the United States of America, where surveys
have shown that, given the choice, over 80 per cent of American judges
would prefer to see pleadings in plain English rather than in traditional
form.
122
118
Examples include F. M. Mester, Plain English for Judges (1983) 62 Michigan Bar Journal,
p. 978; A. L. Cohn, Effective Brief Writing: One Judges Observations (1983) 62 Michigan
Bar Journal, p. 987; M. D. Kirby, On the Writing of Judgments (1990) 64 Australian Law
Journal, p. 691 (especially at p. 708: Brevity, simplicity and clarity are the watchwords for
effective judicial writing.); J. Doyle, Judgment Writing: Are There Needs For Change? 73
ibid., p. 737; Justices Mailhot andCarnwath, Decisions, Decisions . . .AHandbook for Judicial
Decisions (Quebec: Les Editions Yvon Blais Inc., 1998); Right Hon. Beverley McLachlin,
Chief Justice of Canada, Legal Writing: Some Tools (2001) 39 Alberta Law Review, p. 695
(extracted in (2004) 51 Clarity, p. 5); Justice Patrick Keane (NZ), Decisions that Con-
vince (2004) 52 Clarity, p. 26. Other examples are collected in B. Garner, Judges on
Effective Writing (2005) 84 Michigan Bar Journal, p. 44. For an academics viewpoint, see
E. Campbell, Reasons for Judgment: Some Consumer Perspectives (2003) 77 Australian
Law Journal, p. 62.
119
For example, Heerey J in Piccolo v National Australia Bank Ltd [2000] FCA187 at [18], dis-
cussing a plainlanguage guarantee draftedby a leading Australianlawrm: The guarantee
appears to be a standard form document. In contrast to much traditional bank security
documentation, it is clear and comprehensible.
120
See, for example, Justice G. Hill, A Judicial Perspective on Tax Law Reform (1998) 72
Australian Law Journal, p. 685; Justice K. Lindgren, Interpretation of the Income Tax
Assessment Act 1997 (1999) 73 ibid., p. 425; Justice D. Mahoney, A Judges Attitude to
Plain Language (1996) 34 New South Wales Law Society Journal (September), p. 52.
121
As in Blunn v Cleaver (1993) 119 ALR 65 at 83.
122
R. Benson, Plain English Comes to Court (1986) 13 Litigation, p. 21; S. Harrington and
J. Kimble, Survey: Plain English Wins Every Which Way (1987) 66 Michigan Bar Journal
1024; J. Kimble and J. Prokop, Strike Three for Legalese (1990) 69 Michigan Bar Journal,
p. 418 (revised version reprinted in J. Kimble, Lifting the Fog of Legalese (Durham, North
Carolina: Carolina Academic Press, 2006), p. 3); B. Child, Language Preferences of Judges
and Lawyers: A Florida Survey (1990) 64 Florida Bar Journal, p. 32.
The Move t owards Modern Engl i sh 111
To illustrate this outmoded attitude: one Australian appeal court judge
described certain provisions of the Australian Corporations Law which
adopts a consciously plain English style as being drafted in the language
of the pop songs. The judges prime concern seemed to be the drafting
technique of starting a section with However, followed by a comma. In
his view, the quest for simplicity pays the price of vulgarity and ends in
obscurity.
123
Another Australian appellate judge decried the grotesque use
of must in statutes, and especially the phrase must not.
124
Yet another
appellate judge, criticising a clause in a plain English insurance policy, car-
icatured plain English as confused thought and split innitives. He also
offered the gratuitous advice that, if the attempt to reduce insurance policies
to plain English was going to force judges to wrestle with policies of the kind
before the court, then the sooner the attempt is abandoned the better.
125
And yet another judge, in construing a provision that made it an offence
for landlords to get key-money from tenants, said: in using the word get
Parliament has descended in a notably imprecise way into the vernacular.
126
Inthe end, however, carpingcomments of this kindare unlikely toimpede
the relentless move towards plain legal language. This is because they over-
look the substantial benets of a plain language style in legal documents. To
a consideration of those benets we now turn.
123
G. M. & A. M. Pearce and Co. Pty Ltd v R. G. M. Australia Pty Ltd (1998) 16 ACLC 429 at
432 (Callaway JA).
124
Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439 at 4456 (Tadgell JA). The
judges comments are critiqued by linguist Robert Eagleson in: Plain English: Changing
the Lawyers Image and Goals, paper delivered to Literature and the Law Seminar, Perth,
Australia, 16 May 1998; extracts published in (1998) 42 Clarity, p. 34.
125
NRMA Insurance Ltd v Collier (1996) 9 ANZ Insurance Cases 76,717 at 76,721 (Meagher
JA).
126
Gillett v Burke [1997] 1 VR 81 at 100 (Ormiston J).
Chapter Four
SOME BENEFITS OF DRAFTING
IN PLAIN ENGLISH
The previous chapter traced the development of the plain English move-
ment, which arose out of the benets perceived to arise from using plain
language in legal documents. In this chapter, we consider some of those
benets in more detail.
The meaning of plain English
We begin with a point of terminology: what is meant by plain English or
plain language in the context of legal drafting? Various terms are used to
describe the modern style of legal drafting, including modern English and
standard English. Plain English is the term that has achieved the most
widespread use.
Some lawyers are reluctant to use the term plain English. They assume
that it denotes an oversimplied Dick and Jane style that its advocates
employ a debased formof language, shorn of beauty, stripped of vocabulary,
truncated in form and decient in style. This, however, is a limited under-
standingof thetruenatureof plainEnglish.
1
As theLawReformCommission
of Victoria pointed out in its 1986 discussion paper Legislation, Legal Rights
and Plain English, plain English is a full, adult version of the language.
1
R. Eagleson, Plain English: Simple or Simplistic? (1990) 4 Vox, p. 106.
112
Benet s of Draf t i ng i n Pl ai n Engl i sh 113
Documents in plain English are rightly described as simplied, in the sense
of being rid of entangled and convoluted language. But plain English is
more than that:
Plain English is language that is not articially complicated, but is clear and
effective for its intended audience. While it shuns the antiquated and inated
word and phrase, which can readily be either omitted altogether or replaced
witha more useful substitute, it does not seektoriddocuments of terms which
express important distinctions. Nonetheless, plain language documents offer
non-expert readers some assistance in coping with these technical terms. To
a far larger extent, plain language is concerned with matters of sentence and
paragraph structure, with organisation and design, where so many of the
hindrances to clear expression originate.
2
The key lies in the phrase clear and effective for its intended audience.
Central to plain English is the assumption that the parties to the document,
and not the lawyers, are the audience. Once that is established, the structure
and language of the document take on a different form.
More than twenty years ago, the National Consumer Council (UK)
dened plain English by reference to what it called standard English. The
Council said (in a statement which owes something to the New York plain
English law, discussed in Chapter 3):
Plain English means standard English as currently used and understood,
and any move which promotes the use of words in their ordinary, everyday
meaning and deters the use of purple verbiage and fathomless grammar must
only improve the whole quality of our language. There is not much literary
merit in existing contracts.
3
The nature of plain or standard English can be readily seen when set
beside legalese or jargon, examples of which we saw in Chapter 2 and which
we consider further in Chapter 5.
With this point of terminology behind us, we proceed to consider some
of the benets of using clear, modern English in legal documents.
2
Discussion Paper No. 1 (Melbourne, 1986), p. 3.
3
Plain Words for Consumers (London, 1984), p. 47.
114 Modern Legal Draf t i ng
Increased efciency and understanding
The rst benet is increased efciency and understanding. Plain language
documents areeasier toreadandunderstand. Consider thefollowingclauses,
where traditional and plain language versions are juxtaposed.
Table 2 Traditional and plain language legal clauses
Traditional Plain
The Builder shall at his own expense
construct sewer level pave metal kerb
ag channel drain light and
otherwise make good (including the
provision of street name plates in
accordance with the requirements of
the appropriate District Council and
road markings and trafc signs in
accordance with the requirements of
the Council) the street.
The Builder must construct the street
to Council specications.
Until the expiration of twenty one
years from the death of the last
survivor of the purchasers the
trustees for the time being of this
Deed shall have power to Mortgage
Charge Lease or otherwise dispose of
all or any part of the said property
with all the powers in that behalf of
an absolute owner.
For 21 years after the death of the last
surviving purchaser, the trustees have
all the powers of an absolute owner.
The Lessee will not without the
previous consent in writing of the
Lessor at any time x or place any
aerial wires poles or projections or
any other articles notices signs
pictures legend or advertisement or
any other thing outside the Demised
Premises nor any part thereof nor in
the windows thereof on any part of
the Property.
Except with the Landlords prior
written consent, the Tenant must not
put anything
outside the property, or
in any window.
Benet s of Draf t i ng i n Pl ai n Engl i sh 115
In these examples, the plain language versions are more direct and more
easily absorbed. This increases not merely efciency of reading but also ease
of understanding. In the third example, the starkness of the plain language
versionpoints up the rigour of the restrictions onthe tenant. The lawshould
encourage devices which increase ease of understanding, for it remains a
basic principle of common law legal systems that persons are bound by the
documents they sign. Difculty of understanding is not generally a defence.
4
Indeed, a US appellate judge has gone so far as to suggest, in the context of
insurance policies, that the law effectively imposes on customers a duty-to-
read the policy; and that being so, there should be a duty on the insurer to
make the policy readily readable.
5
Also in all these examples, the plainer version is shorter. This is usually
the case, since plain language drafting omits unnecessary detail. Sometimes,
however, a plain language version is longer than the original. In resolving
ambiguities or explaining hidden assumptions, material may have to be
added, not subtracted. Of course, if taken to extremes, length may make
the document inaccessible. At rst glance, this seems to have been the fate
of an Australian Act, the Social Security Act. In a case brought under the
Act, the Federal Court noted that the professed aim of the drafting of the
Acts 1471 pages was to make it more accessible to persons without legal
training, but that the length of the Act meant that non-lawyers could not
master it unaided. However, the real difculty was not length, but rather (as
the court commented) the drafters failure to master the intricacies of their
own creation.
6
The efciencies achieved by using plain language in place of traditional
legal language have beenwell-authenticated.
7
This is soregardless of whether
the document is a one-off, prepared for a particular transaction, or a stan-
dardform, preparedfor transactions of a recurrent kind. But of course inthe
4
LEstrange v F Graucob Ltd [1934] 2 KB 394; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd
(2004) 79 ALJR 129.
5
Commercial Union Midwest Insurance Co v Vorbec 674 NW2d 665 at [55] (Wisconsin, 2003).
6
Blunn v Cleaver (1993) 119 ALR 65 at 812.
7
For documented studies, see Joseph Kimble, Writing for Dollars, Writing to Please (1996
97) 6 Scribes Journal of Legal Writing, p. 3. Cf Ruth Sullivan, The Promise of Plain Lan-
guage Drafting (2001) McGill Law Journal, p. 97 (para 35), concluding from several stud-
ies of users reactions that in communication plain language drafting has a long way
to go.
116 Modern Legal Draf t i ng
case of standard forms the efciencies are more marked, since they accumu-
late each time the formis used. Where a standard formis to be completed by
a customer, plain language reduces customer queries about meaning. It also
reduces customer errors in lling in the form. Staff formerly employed to
handle enquiries and errors can be redeployed to more productive tasks.
Staff can also more efciently process forms that are drafted in plain
language. In these ways, many businesses and government agencies have
attested to saving substantial amounts by converting documents to plain
language.
8
Plainlanguageis alsomoreefcient for lawyers. For example, inastudyfor
the Law Reform Commission of Victoria, lawyers read versions of the same
statute, one written in plain language and the other in traditional language.
On average, the time taken to understand the plain language version was
one-third to one-half less than the time taken to understand the traditional
version.
9
These results have been conrmed in many other studies. They all show
that lawyers and non-lawyers nd plain language easier to read than tra-
ditional legalese, and that their comprehension of content is markedly
increased.
10
8
Many examples are documented in Joseph Kimble, Plain English: A Charter for Clear
Writing (1992) 9 Thomas M. Cooley Law Review, pp. 25 ff; Joseph Kimble, Answer-
ing the Critics of Plain Language (199495) 5 Scribes Journal of Legal Writing, p. 51;
Joseph Kimble, Writing for Dollars, Writing to Please (199697) 6 ibid., p. 1; G. Mills and
M. Duckworth, The Gains from Clarity: A Research Report on the Effects of Plain-language
Documents (Sydney: Law Foundation of NSW, 1996).
9
Robert Eagleson, Plain English A Boon for Lawyers [1991] The Second Draft (Legal
Writing Institute), p. 12.
10
For examples, see J. Davis, Protecting Consumers fromOverdisclosure and Gobbledygook:
An Empirical Look at the Simplication of Consumer Credit Contracts (1977) 63 Vir-
ginia Law Review, p. 841 (consumers); V. Charrow & R. Charrow, Making Legal Lan-
guage Understandable: A Pyscholinguistic Study of Jury Instructions (1979) 79 Columbia
Law Review, p. 1306 (potential jurors); J. Kimble, Answering the Critics of Plain Lan-
guage, pp. 625, 6970; J. Kimble, Writing for Dollars, Writing to Please, p. 25; M.
Cutts, Lucid Law (Stockport: Plain Language Commission, 1994), pp. 226 (law students);
P. Knight, Clearly Better Drafting: A Report to the Plain English Campaign on Testing two
versions of the South African Human Rights Commission Act 1995 (Stockport, UK; Plain
English Campaign, Feb 1966) (lawyers and non-lawyers). Acontrary nding is reported by
R. Penman, Plain English: Wrong Solution to an Important Problem (1992) 19 Australian
Journal of Communication, p. 3; but some have criticised Penmans methods and ndings
Benet s of Draf t i ng i n Pl ai n Engl i sh 117
Although the evidence for increased efciency and understanding seems
conclusive, some lawyers still have reservations on other grounds reser-
vations which they feel outweigh the benets of increased efciency. One
(hardly meritorious) is the prospect of lower fees: if a document is more
efcient, in the sense of taking less time to digest, then lawyers fees might
be reduced. Of course, given its unethical nature, this reservation is unlikely
to be expressed so starkly. But in any case, efciency of this kind is not
the threat to income that it might seem, for there is no direct correlation
between expertise and efciency. As we saw in Chapter 1, time is only one
factor in assessing the lawyers fee.
A related reservation might be the time taken to draft plain language
documents. For many lawyers, especially those newto the techniques, draft-
ing in plain language may take longer than drafting in the traditional style.
While the reader receives the benet of the drafters efforts, the drafter may
have spent considerably more time preparing the document than if it had
been lifted from the computer.
Several responses can be made to this reservation. First, the drafter one
day is a reader the next. Lawyers are not always drafters, any more than
clients are always sellers. Roles change. If plain language documents become
the norm, the legal profession as a whole benets. Second, the drafters task
is not nished when the draft is prepared and sent out. The other party
may propose amendments. If the draft is in plain language, the drafter can
absorb and deal with amendments more easily than if the document is in
traditional form.
11
Of course, the drafter might be working froma standard precedent which
is already in plain English. The advent of plain English will not negate the
usefulness of precedents. In a pressured world, precedents full a need.
They are an efcient tool in turning out documents. To advocate that every
document should be created anew every time is to y in the face of reality.
Even so, the plain English precedent can be adapted more easily to the needs
for example, B. Coleman, Are Clarity and Precision Compatible Aims in Legal Drafting?
[1998] Singapore Journal of Legal Studies, pp. 3957.
11
There are obvious practical problems where (as is often the case) a plain language drafter
is faced with amendments proposed in traditional language. This can produce an uneven
document (which can sometimes be improved by the original drafter exercising a little
judicious and unannounced editing). Until plain drafting becomes universal, or virtually
universal, amendments in an alien style may have to be absorbed.
118 Modern Legal Draf t i ng
of each transaction than can its traditional counterpart, because its meaning
is more transparent.
Fewer errors
A related bonus of a plain language style is the potential for reducing mis-
takes.
12
Traditional legal language tends to hide inconsistencies and ambi-
guities. Errors are harder to nd in dense and convoluted prose. Removing
legalese helps lay bare any oversights in the original. This can benet not
only the client for whom the document is drawn, but also the drafter, for it
forces the drafter to reappraise the text and consider what the client really
intended. And by exposing the contents of the document, plain language
reduces the likelihood of a professional negligence claim against the drafter
or against the person who proffers the document for signature. Clients who
sign a document that is plainly expressed and easily understood will be
hard-pressed to convince a court that they did not understand it. For exam-
ple, in a Canadian case two insured persons sued their insurance agent for
not advising them that their insurance policy excluded cover for damage
to business assets. They failed. The judge considered that the policy was in
easily understandable language and clearly excluded the loss in question.
The insured persons were literate adults, capable of reading a contract, and
it was not appropriate to cast on their agent the responsibility for their not
having read the policy.
13
Logically, if plain language helps reduce errors it should also help reduce
litigation about the meaning of documents. Anecdotal evidence suggests
that this is indeed the case. For example, the company solicitor for NRMA
Insurance (one of Australias rst plain language insurance companies) has
written:
Whenour rst PlainEnglishpolicy wording was released, Mr Justice Reynolds
inanaddress tothe AustralianInsurance Institute suggestedthat the reduction
of insurance policy wordings to Plain English might be at the expense of legal
12
For some examples, see Robert Eagleson, Efciency in Legal Drafting, in Essays on Leg-
islative Drafting in Honour of J Q Ewens, ed. D. St Kelly (Adelaide University Press, 1990),
p. 25.
13
Munro v Shackleton (unreported, Kyle J, Saskatchewan Court of Queens Bench, 12 Novem-
ber 1993; [1993] SJ No 616).
Benet s of Draf t i ng i n Pl ai n Engl i sh 119
inexactitude [sic] or, put in another way, might give rise to litigation over
particular wordings which would not have arisen had traditional wordings
been used. No such increase has occurred on the contrary litigation has
been reduced in this regard.
14
This is not to say that plain language documents will never produce
litigation about meaning: indeed, cases have already arisen.
15
But it seems
unlikely that plain language documents will produce court lists as lengthy
as those produced by documents drafted in the traditional style. As long ago
as 1941, an American study showed that of 500 contract cases decided the
previous year, about 25 per cent were traceable to incomplete negotiation
by the parties and to poor draftsmanship by the parties or their lawyers.
16
Image of the legal profession
Another benet of plain English is its effect on the legal professions public
image. Lawyers have never had a good press. Writers frequently lampoon
them. Achief source of ridicule is the way in which lawyers draft documents.
And a chief source of formal complaints to law societies is the way that
lawyers communicate or rather, fail to communicate with their clients.
17
Lawyers use a language that can only be described as alien: alien to the
general public; alien to clients of all kinds; and alien to educated users of
14
Neville King, Anexperience withPlainEnglish (1985) 61Current Affairs Bulletin(January),
p. 21. To similar effect, in its submissions to the Australian Parliamentary Inquiry into
Commonwealth Legislative and Legal Drafting (18 September 1992), the NRMA stated:
The NRMA has not experienced any adverse court decisions by reason of the Plain
English and subsequent user friendly documents.
15
For example, Ciampa v NRMA Insurance Ltd (unreported, Supreme Court of NSW,
BrysonJ, 23October 1989); NRMAInsurance LtdvMcCarney(1992) 7ANZInsurance Cases
61146; Ross v NRMALife Ltd (1993) 7 ANZInsurance Cases 61170; NRMAInsurance Ltd
v Collier (1996) 9 ANZInsurance Cases 76,717. For reasoned discussions of the possibilities
of increased litigation from plain language insurance policies, see L. Squires, Autopsy of a
Plain English Insurance Contract: Can Plain English Survive Proximate Cause? (1984) 59
Washington Law Review, p. 569; N. Risjord, Plain Language Permission Clauses Spelling
Trouble for Insurers [1990] Defense Counsel Journal (January), p. 77; U. Procaccia, Read-
able Insurance Policies: Judicial Regulationand Interpretation (1979) 74 Israel LawReview,
p. 74.
16
Harold Shepherd, Book Review, (1948) 1 Journal of Legal Education, p. 154.
17
Ann Abraham, Pro Bono Publico Revisited (2001) 4(1) Legal Ethics, p. 12 (Ms Abraham
was the UK Legal Services Ombudsman).
120 Modern Legal Draf t i ng
English.
18
Paradoxically, it is also alien to lawyers themselves. Australian
surveys show that most practising lawyers prefer plain language.
19
So do
most American lawyers, as we saw in Chapter 3.
Legal language has a unique tendency to be wordy, unclear, pompous
and dull.
20
It is also impersonal, lacking warmth.
21
Yet, of all profession-
als, lawyers should have a special afnity with language. Words are their
tools of trade.
22
Nevertheless, a Canadian survey shows that readers nd
legal language seriously incomprehensible
23
and nd legal documents dif-
cult/very difcult to read. It also shows that the general public believes
that, of all professionals, lawyers care least about communicating clearly.
24
English research produces similar results.
25
The image of the legal profession would be greatly enhanced if lawyers
used plain language. As a former president of the Law Society of England
and Wales said in his presidential address to the Societys 1984 national
conference:
Few things have done more to drive people from our doors than our inability
both in documents and in letters and speech to express ourselves in clear
simple English. As Professor Felsenfeld has said: Lawyers have two common
failings. One is that they do not write well, and the other is that they think
they do. It is not the mark of a learned man to express himself in language
which others cannot understand; it is the sign of a fool who cannot think
clearly.
26
18
See, for example, Law Reform Commission of Victoria, Report No. 9: Plain English and the
Law, vol. 1, paras 17 (barely intelligible to many lawyers) and 24 (lawyers themselves are
sometimes misled).
19
Bron McKillop, What Lawyers Think About Plain Legal Language (1994) 32 New South
Wales Law Society Journal (May), p. 68; Mich` ele Asprey, Lawyers Prefer Plain Language,
Survey Finds, ibid. (November), p. 76. There are exceptions: see, for example, W. O. Cald-
well, Be Conservative or Risk It?, ibid. (July), p. 66.
20
David Mellinkoff, The Language of the Law (Boston: Little, Brown & Co, 1963), ch. III.
21
See Mark Adler, Clarity for Lawyers, p. 1.
22
See Glanville Williams, Language and the Law (1945) 61 Law Quarterly Review, p. 71.
23
Robert Benson, The End of Legalese: the Game is Over (198485) 13 Review of Law and
Social Change, p. 532.
24
Survey carried out by the Plain Language Institute of British Columbia: see its Preliminary
Report, Critical Opinions: the Publics View of Legal Documents (1992), pp. 18, 26.
25
Mark Adler, Bamboozling the Public [1991] New Law Journal, p. 1032.
26
Arthur Hoole (1984) 81 Law Societys Gazette, p. 2817. The Felsenfeld quotation is from
The Plain English Movement in the United States (198182) 6 Canadian Business Law
Journal, p. 413, originally a paper delivered at the University of Toronto in 1981.
Benet s of Draf t i ng i n Pl ai n Engl i sh 121
Marketing
Related to issues of image, plain language can be a valuable marketing tool.
Many businesses such as insurance companies and banks nowtreat compre-
hensible language as a virtue, to be trumpeted in public advertising: come
to us because you can understand our documents. Lawyers too can market
their plain language skills. Many of the larger law rms already do so, with
partners publishing widely in law-related journals.
27
Compliance with statutory requirements
Chapter 3discussedsome of the USlaws compellingthe use of plainlanguage
in certain documents. Many other jurisdictions have passed laws requiring
specieddocuments tobe inplainlanguage. Whatever the jurisdiction, these
laws illustrate a phenomenon that does no credit to the legal profession:
parliamentary intervention to compel recalcitrant lawyers to depart from
their traditional style in favour of plainer, more accessible drafting.
Here we consider briey certain legislation in the United Kingdom and
Australia requiring the use of plain language in particular contexts. In
these countries, as in others that have passed similar laws, the legislation
brings with it drafting opportunities for those skilled in plain language
techniques.
The United Kingdom
An example in the United Kingdom is the Unfair Terms in Consumer Con-
tracts Regulations 1999,
28
implementing a directive of the European Com-
mission. Essentially, the regulations provide that a consumer is not bound
by a standard term with a seller or supplier if that term is unfair. By
regulation 7:
27
For examples fromAustralia, see E. Kerr, Plain Language: Is it Legal? (1991) 29 New South
Wales Law Society Journal (June), p. 52; David Colenso, Plain English Leases Clearly
Better Leases (1996) 26 Queensland Law Society Journal (April), p. 157; David Kelly, Plain
English: An Underestimated Task? (1999) 43 Clarity, p. 5; Steve Palyga, Is it Safer to Use
Legalese or Plain English? What the Judges Say, ibid., p. 46. For an example from Hong
Kong, see R. Mazzochi and M. Siu, Plain English Prospectuses (October 2005) Company
Secretary (Journal of the Hong Kong Institute of Chartered Secretaries), p. 12.
28
SI 1999 No. 2083, revoking and replacing SI 1994 No. 3159.
122 Modern Legal Draf t i ng
(1) A seller or supplier shall ensure that any written term of a contract is
expressed in plain, intelligible language.
(2) If there is doubt about the meaning of a written term, the interpretation
which is most favourable to the consumer shall prevail . . .
This provision, which may have been inspired in part by the plain lan-
guage movement in English-speaking countries,
29
is not without its dif-
culties in particular, the word intelligible. Intelligible to whom?, one may
ask.
30
Additionally, the Consumer Credit (Advertisements) Regulations 2004
require all advertisements offering credit or hire facilities to use plain and
intelligible language.
31
The Ofce of Fair Trading is primarily responsible for enforcing the 1999
regulations. The head of the Ofces Unfair Contract Terms Unit has written
that the Ofce is yet to nd a legal concept that dees translation into plain
language.
32
The Ofce urges:
r
the use of ordinary words
r
a transparent style and structure
r
legibility
r
abandoning cross-references to statutes and the consumer rights under
them
r
jettisoning general phrases like this does not affect your statutory rights
and exclusions like to the greatest extent permitted by law.
The Ofce publishes regular bulletins on cases where traders have dropped
or amended terms as a result of enforcement action.
33
Formerly, doubt existed over whether the regulations applied to doc-
uments creating or transferring interests in land.
34
The English Court of
29
See Ewoud Hondius, EC Directive on Unfair Terms in Consumer Contracts: Towards a
European Law of Contract (1994) 7 Journal of Contract Law, p. 42.
30
Meryll Dean, Unfair Contract Terms: The European Approach (1993) 56 Modern Law
Review, p. 581. See alsoFrancis Bennion, Opposites Attract [1997] NewLawJournal, p. 684
(commenting on a discussion of the regulations by Tracey Reeves, Opposites Attract: Plain
English with a European Interpretation, ibid., p. 576).
31
SI 2004 No. 1484, reg. 3(a).
32
Ray Wooley, Plainly Unfair (1998) 68 Adviser, p. 36. Consumer information can be found
at the OFTs website <www.oft.gov.uk/consumer>
33
Some of these are detailed in Sheila Bone and Steve Wilson, Contract terms, fairness and
the consumer [1998] Solicitors Journal, p. 346.
34
See, for example, Rex Newman and Clive Halperin, Fair Enough? (1995) 139 Solicitors
Journal, p. 632.
Benet s of Draf t i ng i n Pl ai n Engl i sh 123
Appeal has now held that the regulations do apply to such documents.
35
Whether as the result of the regulations or not, a shift to plain language is
evident in a number of important conveyancing documents used in Eng-
land. These include:
r
the Standard Conditions of Sale
r
the Law Societys business leases
r
mortgage conditions of several large lenders
r
the Standard Commercial Property Conditions
r
the British Property Federations short-term commercial lease (2002)
r
theBritishPropertyFederations andtheBritishCouncil for Ofces model
clauses for ofce lease (2003).
The Standard Commercial Property Conditions follow the same pat-
tern as the earlier Standard Conditions of Sale. Both are logically ordered,
written in a style that is plain and direct, and reject shall. (The similarity
is to be expected, as both result from a joint endeavour between the Law
Society of England and Wales and Oyez Forms Publishing.) Likewise, the
British Property Federations lease is a bold attempt to provide industry-
standard documentation. It is in simple form, to ensure comprehension by
a wide audience. While not as radical as the Law Societys business lease, or
Aldridges Practical Lease Precedents,
36
it shares many of the same features:
clear layout, direct language, and no superuous provisions.
Finally, the Clients Charter published by the LawSociety of England and
Wales states that a solicitor will make every effort to explain things clearly,
and in terms you can understand, keeping jargon to a minimum.
Australia
A number of Australian statutes prescribe plain language in certain areas.
For example, the New South Wales Legal Profession Act requires fee disclo-
sures by lawyers to be in writing and be expressed in clear plain language.
37
Consumer credit legislation in all states requires contracts and notices by
credit providers to be easily legible and clearly expressed.
38
Common-
wealth insurance legislation requires insurers to clearly inform prospective
35
London Borough of Newham v Khatun [2005] QB 37.
36
Trevor Aldridge, Practical Lease Precedents (London: Sweet & Maxwell, looseleaf).
37
2004 (NSW), s 315(1).
38
For example, Consumer Credit (NSW) Code, s 162.
124 Modern Legal Draf t i ng
insured persons of their duty of disclosure when taking out insurance,
39
a
requirement which has been held to require not only that the information
be clearly expressed but also that it be adequately brought to the insureds
attention.
40
The QueenslandIndustrial Relations Act 1999, s 333, requires the
QueenslandIndustrial Relations Commissiontoensure that its writtendeci-
sions are in plain English and structured in a way that makes a decision as
easy to understand as the subject matter allows.
41
And the Commonwealth
Industrial Relations Reform Act 1993 requires the Commonwealth Indus-
trial Relations Commission to vary industrial awards that are not expressed
in plain English, or are not structured in a way that is as easy to under-
stand as the subject matter allows, or that prescribe matters in unnecessary
detail.
42
This has forced the Commission to explain the meaning of plain
English, as the legislation itself offers no guidance. In a leading 1997 case,
the Commission explained the term in this way:
PlainEnglishis, inour view, clear andprecise language whichis easy to under-
stand and which communicates its message effectively. It is not a simplied
form of English. It puts the reader rst and avoids archaic words, jargon,
unnecessary technical expressions and complex language. Plain English is not
just about words. It means using plain language to express ideas so that they
make sense to the reader and designing documents so that information is
easy to nd and understand . . . Using plain English does not mean sacricing
precision.
43
Less directly, consumer protection legislation both at Commonwealth
and state level empowers courts to vary or set aside contracts that are uncon-
scionable or unjust. For example, ss 51ABand51ACof the Trade Practices Act
1974 (Cth) proscribe conduct intrade or commerce that is unconscionable.
39
Insurance Contracts Act 1984 (Cth), s 22(1).
40
Suncorp General Insurance Ltd v Cheihk (1999) 10 ANZ Insurance Cases 61442 at 75,024.
41
The requirement is mandatory: The Commission must ensure . . . However, as one judge
has noted, despite the peremptory must, the Act does not disclose the consequences of
disobedience. Are non-complying Commissioners to be treated as law-breakers? See Justice
Barrett, A judicial response to plain language (2003) 49 Clarity, pp. 810.
42
Industrial Relations Reform Act 1993 (Cth), s 17, inserting a new provision, s 150A, into
the Industrial Relations Act 1988 (Cth). Compare Lord Diplocks lament in Merkur Island
Shipping Corporation v Laughton [1983] AC570 at 612, that the lawshould be expressed in
terms that can easily be understood by those who have to apply it even at shop oor level.
43
Re Award Simplication Decision (1997) 75 IR 272 at 305.
Benet s of Draf t i ng i n Pl ai n Engl i sh 125
Under both sections, in deciding whether conduct is unconscionable, the
court may have regard to (among other matters) whether the consumer
was able to understand any documents relating to the transaction. Simi-
larly, under s 7 of the Contracts Review Act 1980 (NSW), a court may vary
or set aside contracts that are unjust in the circumstances in which they
are made. Under s 9, in considering a contract that is wholly or partly in
writing, the court may have regard to (among other matters) the physical
form of the contract, and the intelligibility of the language in which it is
expressed. The case law which has developed under these and comparable
provisions indicates that courts look closely at the language in which con-
tracts are couched, and particularly take into account the impediments to
intelligibility posed by documents drafted in the traditional style.
44
General
Indeed, even in the absence of statutory provisions of this kind, it can be
argued that the law has evolved to the point that courts take factors such as
these into account in deciding whether to set aside contracts on the ground
of unconscionability.
45
If correct, this argument gives the lie to the premise
(discussedinChapter 1) that safety lies inretaining traditional forms of legal
drafting. UScourts have heldthat elements inestablishingunconscionability
include:
r
hiding clauses which are disadvantageous to one party in a mass of ne
print trivia or in places which are inconspicuous to the party signing the
contract
r
phrasing clauses in language incomprehensible to a lay reader or that
diverts the lay readers attention fromthe problems they raise or the rights
they extinguish.
46
44
Cases include: National Australia Bank Ltd v Nobile (1988) ATPR 40855; Bridge Wholesale
Acceptance (Australia) Ltd v GVS Associates Pty Ltd [1991] ASC 57,116; Goldsbrough v Ford
Credit Australia Ltd [1989] ASC 58,583; National Australia Bank Ltd v Hall (1993) ASC
56234. Compare J. Goldring, Certainty in Contracts, Unconscionability and the Trade
Practices Act: The Effect of Section 52A (1986) 11 Sydney Law Review, p. 529, arguing that
since the Contracts Review Act requires all the circumstances to be taken into account, this
provision should not be taken as a general injunction to use plain English documentation.
45
Examples include: Commercial Bank of Australia Ltdv Amadio (1983) 151 CLR447; Creswell
v Potter [1978] 1 WLR 255, especially at 260.
46
Willie v Southwestern Bell Telephone Company 549 P 2d 903 at 907 (1976).
126 Modern Legal Draf t i ng
Conclusion
A legal document has several functions. The primary one is to carry out
a legal purpose, but there are others: to communicate, to inform, and to
persuade. A legal document creates a private law for the parties, governing
their relationship for a specied time and for a specied purpose. In laying
down that private law, there is no good reason to use language other than
plain, modern English.
The traditional legal document is acommunicationfromlawyer tolawyer.
The reform movement in legal drafting reminds us that it is also a commu-
nication from lawyer to client. Specialists can talk to specialists in special
language if they wish. An expert in heraldry may describe an armorial bear-
ing to another expert in language that is precise and unambiguous, yet
unintelligible to the uninitiated; nothing much turns on the unintelligibil-
ity of their coded language to outsiders. But law is different. Law is involved
with the whole world, with life and with people. Legal language should no
more be conned to coded messages than language generally.
Modern, plain English is as capable of precision as traditional legal
English.
47
It can cope with all the concepts and complexities of the law
and legal processes. The few technical terms that the lawyer might feel com-
pelled to retain for convenience or necessity can be incorporated without
destroying the documents legal integrity. The modern English of a legal
document will never read like a good novel, but it can be attractive and
effective in a clean, clear, functional style.
47
Compare Brady Coleman, Are Clarity and Precision Compatible Aims in Legal Drafting?
[1998] Singapore Journal of Legal Studies, p. 376, taking a scholarly but less sanguine view
than ours.
Chapter Fi ve
WHAT TO AVOID WHEN
DRAFTING MODERN DOCUMENTS
Introduction
In the preceding chapters we examined the inuences that tend to perpet-
uate the traditional style of legal drafting. We also considered the ways in
which legal documents are interpreted. We traced the move towards plain
legal language and explored some of the benets of using modern, standard
English. Now we move to examine rather more closely the techniques of
drafting in modern, standard English: the how to. The best way to begin is
by considering what not to do that is, by considering techniques the drafter
should avoid. And so this chapter highlights those aspects of the traditional
style that should be shunned by the legal drafter who wants to move to a
clear, modern style.
It is not difcult to identify characteristics of traditional legal documents
that should be avoided. Here are some of the more common:
r
wordiness and redundancy
r
overuse of the modal verb shall
r
obscure language
r
unusual word order
r
constantly litigated words and phrases
r
foreign words and phrases
r
unduly long sense-bites
r
legalese and jargon
127
128 Modern Legal Draf t i ng
r
peculiar linguistic conventions
r
use of noun phrases in place of verbs
r
overuse of the passive
r
deeming
r
poor use of denitions
r
overuse of capitals
r
careless use of provisos.
This list of characteristics is not exhaustive. But all are found, to a greater
or lesser degree, in traditionally drafted legal documents. We will consider
each in turn.
Wordiness and redundancy
Wordiness is the legal professions most recognisable characteristic, redun-
dancy its strongest point. Lawyers really do go on. Their motto might be:
Never use one word where you can use two; and the more you use, the
better. As an American judge has put it: The legal mind nds magnetic
attraction in redundancy and overkill.
1
These characteristics of wordiness and redundancy give legal writing its
distinctiveness. Yet they are almost always unnecessary, both linguistically
and legally. They serve only to dull the reader. They are seen most often in
common pairings like null and void, goods and chattels, t and proper,
storm and tempest, well and sufciently, agreed and declared. (We dis-
cussed the tautological nature of some common pairings in Chapter 1.) But
they are also seen in forms of repetition that are longer and more ambi-
tious. Consider, for example, the following typical lease provision, setting
out some of the tenants rights:
TOGETHER WITH the right in common with the Landlord and all others
having the like right to use for the purpose of ingress to and egress from the
Flat the pathway leading thereto fromGrenville Road and also the right to use
the yardat the rear of the Flat andthe washing line situate thereinTOGETHER
WITH the free and uninterrupted use of all gas water electricity and other
pipes wires ues drains passing in through or under any part of the property
but excepting and reserving to the Landlord and the person or persons for
1
Coca Cola Bottling Co. v Reeves 486 So 2d 374 at 3834 (Miss. 1986; Robertson J).
What t o Avoi d when Draf t i ng 129
the time being occupying any other part or parts of the property (a) the free
and uninterrupted use of gas water electricity drainage telephone supply and
other pipes wires ues conduits and drains in through and under the Flat (b)
the right to install or renew any such services causing as little disturbance as
possible and making good any damage forthwith.
This wordiness springs from a spurious attempt at precision. The drafter
hopes, by piling word on word, to cover every conceivable circumstance, as
if to ensure exactitude by weight of words. But the reality is that the tenants
rights couldhave beenexpressedmuchmore simply andjust as efcaciously:
With the right to use (along with other users)
r
the path between the at and Grenville Road
r
the yard behind the at
r
the washing line in the yard
r
all service conduits and wires running in any part of the property
but reserving
2
to the landlord and occupiers of other parts of the property
r
the use of all service conduits and wires running in the at
r
the right to install or renew any service conduits and wires serving the
at, but causing as little disturbance as possible and repairing any damage
straight away.
This wouldreduce the original 150words toabout 90, gainingclaritywithout
losing precision.
Repairing covenants in leases also commonly exhibit the same excessive
wordiness. The following clause was the subject of litigation in England:
When where and so often as occasion shall require well and sufciently to
repair renew rebuild uphold support sustain maintain pave purge scour
cleanse glaze empty amend and keep the premises and every part thereof
(including all xtures and additions thereto) and all oors walls columns
roofs canopies lifts and escalators (including all motors and machinery there-
for) shafts stairways fences pavements forecourts drains sewers ducts ues
conduits wires cables gutters soil and other pipes tanks cisterns pumps and
2
The original uses exceptingandreserving. Chapter 1notedthe technical distinctionbetween
an exception and a reservation. The indiscriminate conjunction of the terms here shows
that the drafter is unlikely to have appreciated the distinction.
130 Modern Legal Draf t i ng
other water and sanitary apparatus thereon with all needful and necessary
amendments whatsoever (damage by any of the insured risks excepted so
long as the lessors policy or policies of insurance in respect thereof shall not
have become vitiated or payment of the policy moneys be refused in whole
or in part in consequence of some act or default of the lessee) and to keep
all water pipes and water ttings in the premises protected from frost and to
be responsible in all respects for all damage caused to the premises or to the
said buildings or any part thereof or to the neighbouring property or to the
respective owners or occupiers thereof through the bursting overowing or
stopping up of such pipes and ttings occasioned by or through the neglect
of the lessee or its servants or agents.
This clause is replete with tautology, both linguistic and legal. No doubt its
verbosity was promptedby a desire for precision. Yet despite all its words, the
parties ended up in court disputing the extent of the obligation to repair.
3
Oftena repairing covenant spells out that the tenant must not only repair
but must also put into repair. This is strictly unnecessary, for an obliga-
tion to repair generally includes an obligation to put into repair.
4
Likewise,
a repairing covenant generally includes an obligation to rebuild following
wilful neglect or destruction by the party obliged to repair, to decorate
where necessary, and to keep clear of vermin. But these also are strictly
unnecessary, being comprehended by a general obligation to repair.
5
So,
although most current repairing covenants are much more overblown than
merely requiring the tenant to repair, the extra words usually add nothing.
Indeed, by expressing the tenants duties in over-particular ways, added
words can be counterproductive, since they may serve to exclude what
would otherwise be implied (see the discussion of the expressio unius rule in
Chapter 2).
Excessive wordiness is also commonly found in grants of rights of way.
The grantee is given the full right to pass and repass on foot or with or
without vehicles along and over the footpaths and roads respectively of the
3
Ravenseft Properties Ltd v Davstone (Holdings) Ltd [1980] QB 12.
4
See Foster v Day (1968) 208 EG 495.
5
Manchester Bonded Warehouse Co. v Carr (1880) 5 CPD507 at 512 (obligation to rebuild on
wilful neglect or destruction); Proudfoot v Hart (1890) 25 QBD 42 at 535, 56 (obligation
to decorate when necessary); Jones v Joseph (1918) 87 LJ KB 510 (obligation to keep clear of
vermin).
What t o Avoi d when Draf t i ng 131
said Estate. Is this any different froma right of way, on foot or with vehicles,
over the footpaths and roads of the Estate?
6
Overuse of shall
Shall is the hallmark of traditional legal writing. Whenever lawyers want
to express themselves in formal style, shall intrudes. The word litters most
precedent books, and nds its way into wills, conveyances, leases, and all
types of contracts.
In traditional legal documents, shall serves many purposes. They include
the following (with examples drawn from documents drafted in the tradi-
tional style):
r
To impose a duty: The Distributor shall keep in good and saleable con-
dition a stock of the Goods.
r
To grant a right: A purchaser shall have the right to cancel the purchase
transaction until midnight.
r
To give a direction: The receipt of a person who appears to be a proper
ofcer of the charity shall be a discharge to my Trustees.
r
To state circumstances: The said restrictions shall be binding onthe prop-
erty hereby assuredandthe owner or owners thereof fromtime totime but
the Purchasers shall not be personally liable for any breach thereof occur-
ring after they shall have parted with all interest in the land in respect of
which the breach shall occur.
r
To create a condition precedent (a precondition): If the Vendor shall
within one month of the receipt of such notice give written notice . . .
r
To create a condition subsequent: If in any circumstances my said
intended marriage shall not have been solemnised within the period of
six months from the date hereof then at the end of that period this my
said will shall become void.
r
To express the future: The waiver of the observance and performance of
the said covenant shall terminate on the disposal of the said property.
6
Even here, the reference to access on foot is strictly unnecessary, since a right of vehicular
use includes a right of pedestrian use, permitting the grantee to walk along the roads as well
as the footpaths: Davies v Stephens (1836) 7 C & P 570; 173 RR 251.
132 Modern Legal Draf t i ng
r
To negate a duty or discretion: The Vendor shall not be bound to show
any title to boundaries fences ditches or walls.
r
To negate a right: Such statement shall be deemed to be correct and shall
be binding on the Client.
r
To express intention: The said wall when erected shall be deemed to be a
party wall.
This list is not exhaustive. Like the categories of negligence, the categories
of shall are not closed. Often, in the one document, shall serves a number
of purposes. There may be a primary purpose, with subsidiary purposes;
or two or three purposes may carry equal weight. The following provision
from a Canadian credit agreement illustrates different uses of shall within
the one clause:
A certicate of a Lender setting forth amount or amounts necessary to com-
pensate such Lender . . . shall be delivered [read must be delivered] to the
Borrower, and shall be conclusive [read is conclusive] absent manifest error. In
preparing any such certicate, a Lender shall be entitled to use [read may use]
averages and make reasonable estimates, and shall not be required to [read
need not] . . . isolate particular transactions. The Borrower shall pay [read
must pay] such Lender the amount shown as due on any such certicate . . .
To the lawyer, a chief attraction of shall is its exibility. But this ex-
ibility is also a source of danger, for it may lead to legitimate argument
about which use of shall was intended. And so the primary objection to
shall is not merely that it is archaic and marks out formal legal English from
modern, standard English, but that its use can lead to confusion. The poten-
tial for confusion was one ground of appeal in the important Hong Kong
case of HKSAR v Ma Wai-kwan.
7
The case concerned the constitutional
validity of Hong Kongs Provisional Legislative Council and the acts of the
National Peoples Congress. That validity turned on the meaning of shall
in Article 160 of Hong Kongs Basic Law. Article 160 provided (with our
emphasis):
Upon the establishment of the Hong Kong Special Administrative Region,
the laws previously in force in Hong Kong shall be adopted as the laws of the
Region . . .
7
[1997] 2 HKC 315.
What t o Avoi d when Draf t i ng 133
Did the italicised words require a positive act of adoption (which had not
occurred) before the previous laws became the laws of the Region; or did
they mean that the laws previously in force in Hong Kong are the laws of the
Region, without the need for a positive act of adoption? The Court of Appeal
held in favour of the latter construction. In the context of the Basic Law as
a whole, shall here was used not in the sense of requiring future action, but
in a present, declaratory sense.
8
Judicial authority on shall centres around two prime areas. The rst
concerns the difference between futurity and a precondition. The second
concerns the difference between an obligation and a direction.
Futurity or precondition?
The issue here is the relationship of a triggering event to the date of the
document: can a triggering event already have taken place by the time the
document is written, even though the document may not come into effect
until much later? On one line of authorities, typied by Re Walker,
9
the
answer is no, because shall necessarily implies futurity. On this view, a shall
provision relates only to the period after the documents date. It speaks
only of events occurring after the document comes into existence. But on a
contrary line of authorities, based on Loring v Thomas,
10
the answer is yes,
because a shall provision is a mere description of a state of affairs at a later
date, setting out a precondition to some other occurrence. On this second
view, something which has already happened before the documents date
can be a triggering event.
To illustrate the different approaches, consider the following clause from
a partnership deed:
If any partner shall become bankrupt, the other partners may terminate the
partnership.
Can the partnership be terminated on the ground that a partner was already
bankrupt at the date of the partnership agreement? According to Re Walker,
no, because shall indicates that the parties have inminda bankruptcy occur-
ring after the date of the partnership deed. According to Loring v Thomas,
yes, because the precondition to termination is bankruptcy, whenever it
occurs.
8
See especially [1997] 2 HKC 315 at 3268 (Chan CJHC), 347 (Nazareth VP).
9
Re Walker [1930] 1 Ch 469.
10
Loring v Thomas (1861) 30 LJ Ch 789.
134 Modern Legal Draf t i ng
The problem is acute in the case of wills, which come into effect not
when they are signed but when the testator dies. Wills commonly contain
references such as who shall die in my lifetime or who shall predecease
me or the like as in a bequest to the children of those who shall die
in my lifetime or to the children of those who shall predecease me. On
the rst line of authorities, the phrase does not encompass the children of
persons already dead at the date of the will.
11
Likewise, the phrase who
shall be born would usually exclude persons born before the date of the
will.
12
In Re Walker, Lord Hanworth MR said that the natural meaning of shall
was as a word of futurity.
13
However, that natural meaning clearly did
not commend itself to the judges in the Loring v Thomas line of cases.
14
An example is Metcalfe v Williams,
15
which concerned a substitutionary gift
drafted in these terms: if a child of the testator shall die in my [that is, the
testators] lifetime, thenthat childs share shouldpass tothat childs children.
A son of the testator had died before the testator made his will. Were the
children of that son entitled to the share which their father would have taken
had he survived the testator? The court held yes. Likewise, a surrender of
copyhold land
16
to such uses as a certain person (the testator) shall by will
direct was held to apply to a will executed before the surrender, since the
court consideredthat the surrender referredtowhatever will was inexistence
at the testators death.
17
So also a clause in a trust deed divesting property
11
See, for example, Christophersonv Naylor (1816) 1 Mer 320; 35 ER693; Gorringe v Mahlstedt
[1907] AC 225; Re Cope [1908] 2 Ch 1, CA; Re Brown [1917] 2 Ch 232; Re Walker [1930] 1
Ch 469 (Eve J and CA); Re McPherson [1968] VR 368; Re Rowlands [1973] VR 225. See also
Batemans Will Trusts [1970] 3 All ER 817 (Pennycuick V-C) (as shall be stated by me).
12
Gibbons v Gibbons (1881) 6 App Cas 471.
13
Re Walker [1930] All ER Rep 392 at 395, CA. This passage did not nd its way into the
authorised report, [1930] 1 Ch 469; but it appears in other reports of the case: (1930) 99
LJ Ch 225 at 228; (1930) 142 LT 472 at 474.
14
Loring v Thomas (1861) 30 LJ Ch 789; Re Birchall [1940] 1 All ER 545, CA; Re Lambert
[1908] 2 Ch 117; Barraclough v Cooper [1908] 2 Ch 121n, HL; Re Metcalfe [1909] 1 Ch
424; Re Sheppard (1855) 1 K & J 269; 69 ER 459; Re Rayner (1925) 134 LT 141; Re Halliday
[1925] SASR 104; Re Sewell [1929] SASR 226; Re Booths Will Trusts (1940) 163 LT 77.
15
[1914] 2 Ch 61, CA.
16
The appropriate way of transferring copyhold land was by surrendering the land to the lord
of the manor, followed by a regrant to the intended transferee. Copyhold is now obsolete.
17
Spring v Biles (1783) 1 TR 435n at 437 (99 ER 11182n at 1184), Lord Manseld: A will
speaks at different times for different purposes; to many purposes from the date; to other
purposes from the testators death.
What t o Avoi d when Draf t i ng 135
from the donee if the donee shall become bankrupt was held to mean
simply being bankrupt; it was immaterial whether the bankruptcy occurred
before or after the date of the trust deed.
18
And in a recent Australian case, a
statute providedthat where aninsurance policyindemniedapersonagainst
liability, the amount of the liability shall . . . be a charge on the insurance
moneys payable in respect of that liability. The insurer argued that shall here
required a construction that the charge arose only where the event insured
against occurred after the policy came into existence: that is, shall required
an element of futurity. The court rejected this argument, holding that the
charge arose evenwhere the event insured against occurred before the policy
was taken out: that is, shall here did not import any element of futurity, but
merely described an existing legal result.
19
These differing conclusions on the effect of shall point up the dangers in
its uncritical use. They illustrate the folly in assuming that shall is a word of
legal precision, with a certain and sure meaning. Ultimately, whether shall
is read as importing a necessary element of futurity or merely a precondi-
tion (whether occurring before or after the date of the document) depends
entirely on context, each case turning on its own particular circumstances
thus introducing easy potential for litigation. As Lord Greene MR said in Re
Donald, concerning the use of shall:
A number of cases have been cited. I nd no assistance in scrutinising the
exact language of those cases and comparing it with the language used in
this case. In cases dealing with the construction of wills a comparison in, so
to speak, parallel columns between the language used in wills which have
been the subject of decided cases and that used in the will before the court
does not often lead to a useful result. On the contrary, it very often tends to
confuse.
20
If it is necessary to express the future, what word should be used? Most
modern drafters, seeing the difculties in shall, use will instead. But of
course, this is not without difculties of its own. Will carries as many
18
Manning v Chambers (1847) 1 De G & Sm 282 (69 ER 1069), interpreted in Seymour v
Lucas (1860) 29 LJ Ch 841 (Kindersley V-C). See also Re Akeroyds Settlement [1893] 3
Ch 363.
19
FAI General Insurance Co. Ltd v McSweeney (1997) 73 FCR379 (Fed Ct, Australia, Lindgren
J).
20
[1947] 1 All ER 764 at 766, CA.
136 Modern Legal Draf t i ng
problems as shall, for although normally denoting futurity it canalso denote
compulsion,
21
an issue to which we now turn.
Direction or obligation?
Courts usually construe shall as creating an obligation. Sometimes, though,
they construe it as giving a mere direction.
22
To illustrate: in Halley v Watt
23
a Scottish statute provided (in a section headed Jury trial in Sheriff Court)
that, in an employees action for damages against an employer, either party
could require that the cause shall be tried before a jury. This provision was
held to give a right to that mode of trial, regardless of the courts view about
the suitability of the case for trial by jury: in effect, shall was mandatory.
In contrast, in R v Craske, ex parte Metropolitan Police Commissioner,
24
a
provision that the court shall proceed to the summary trial (that is, a trial
without a jury) was held to be directory only, and did not deprive the court
of the power toallowthe accusedtoelect for trial by jury insteadof summary
trial.
Shall has even been found in the same section of a statute both to impose
a duty and to grant a right.
25
This result has been called curious,
26
but it
is far from unknown.
27
For example, in Hatton v Beaumont the Australian
High Court held that paragraph (a) of a liquor licensing regulation, which
stated that an appellant shall lodge . . . a notice of his intention to appeal . . .
within twenty-one days of the decision appealed against, was mandatory.
Yet the Court also held that paragraph (e) of the same regulation, which
stated that the appellant shall within seven days of lodging his notice of
21
See Rayeld v Hands [1958] 2 All ER 194 (will imposes obligation); Hector Steamship Co.
Ltd v VO Sovfracht Moscow [1945] KB 343 (will equals is bound to).
22
For examples, see Strouds Judicial Dictionary, 5th edn, ed. John S. James (London: Sweet
& Maxwell, 1986), pp. 240311 (shortened entry in 6th edn, 2000, ed. D. Greenberg and
A. Millbrook, pp. 242830).
23
[1956] SLT 111.
24
[1957] 2 QB 591.
25
Cooke v NewRiver Co. (1888) 38 ChD56, CA; onappeal (1889) 14 AppCas 698 at 699 (Lord
Herschell): My lords, it has been my lot to construe many Acts of Parliament which were
obscurely worded, but I donot thinkI ever met withone uponwhichit was more impossible
to put a satisfactory construction than the statute with which we have to deal in the present
case.
26
By the editor of Strouds Judicial Dictionary, 5th edn, ed. John S. James (London: Sweet &
Maxwell, 1986), at p. 2409 (not repeated in 6th edn, ed. D. Greenberg and A. Millbrook).
27
See George Coode, On Legislative Expression, 2nd edn (1852), pp. 17, 31; reprinted in
E. Driedger, The Composition of Legislation (Ottawa: Department of Justice, 1976).
What t o Avoi d when Draf t i ng 137
appeal deposit the sum of ten pounds or enter into a recognisance with one
surety in the sum of ten pounds, was directory only, the appeal not being
vitiated by its non-observance.
28
Here too, the differing senses of shall point up the dangers inherent in
its uncritical use. As with the futurity/precondition division, so also the
obligation/direction division serves as a warning to those who assume that
shall, so hallowed by usage, is necessarily precise. We return to the obliga-
tion/direction problem in Chapter 6, where we consider whether shall has
any place in a modern legal document.
Obscure language
Obscure language should be an anathema in all legal writing, yet it abounds
inlegal documents. Lawyers may defendthe language they use onthe ground
that it is necessary for legal efcacy, but legal efcacy and obscurity are
strange bedfellows. Sotooare obscurityandprecision. Almost always, simple
language has just as much legal effect as obscure language, and it can be just
as precise.
To illustrate, consider this description of leased property, drawn from an
actual lease:
ALL THOSE ofces and toilet on the second oor of the building at Mill Lane
shown for the purpose of identication only edged red on the plan annexed
hereto (hereinafter called the Building).
This language is the product of pure habit. It is justied neither by legal
necessity nor by precision. The words were intended to describe the leased
property, which was the whole of the second oor in the building, and
nothing more than the second oor. The drafter apparently inserted the
references to the Building and edged red on the plan because, from a
birds-eye view, the boundaries of the building and of the oor to be let were
identical. But surely it would have been clearer to say:
28
(1978) 20 ALR 314.
138 Modern Legal Draf t i ng
ALL THOSE ofces and toilet (on the second oor of the Building at Mill
Lane) shown for the purpose of identication only edged red on the plan
annexed hereto.
Once this stage is reached, unnecessary words and phrases could have
been deleted in an attempt to write literate, modern English. Unnecessary
words and phrases are: All those; the purpose of; hereto. The word only
is also strictly unnecessary, because shown for identication surely means
shown for identication and not for any other purpose; and in any case,
the whole phrase shown for identication can be replaced with shown.
Also, we could dene the building and the plan elsewhere. We could then
describe the property as:
The ofces and toilet on the second oor of the building and shown edged
red on the plan.
Unusual word order
Lawyers often adopt an unusual word order. Here are some typical examples
taken from traditionally-drafted documents:
r
title absolute
r
for the time being entitled
r
from time to time and at all times during the said lease well and substan-
tially to repair
r
such documents as the vendor is required by legislation to furnish
r
as well before as after any judgment
r
as in this deed provided
r
that the tenant paying the rents hereby reserved and performing and
observing the several covenants on its part herein contained shall peace-
ably hold and enjoy the leased property
r
the title above mentioned
r
therein appearing
r
will at the cost of the borrowers forthwith comply with the same
r
and may thereafter upon the demised premises or on some part thereof
in the name of the whole re-enter
r
being then a licensed moneylender.
What t o Avoi d when Draf t i ng 139
Examples such as these cause little trouble for lawyers, for whom invert-
ing word order becomes second nature. But they trouble the non-lawyer,
unfamiliar with such linguistic eccentricities.
Separating parts of a verb
A particular source of difculty is the device of widely separating two parts
of a verb. Sense may well be lost, as in this clause:
In the event of any breach by the Cardholder of this agreement the Bank
may in circumstances where the Principal Cardholder fails to comply or to
procure compliance with the terms of a notice served by the Bank upon the
Principal Cardholder require repayment in full of the outstanding balance on
the Account.
The verb combination here is may require, but the modal auxiliary may
is separated from its associated main verb require by twenty-seven words.
The whole passage contains only fty-three words, so the verb is split by
more than half the total words no wonder the reader is thrown. It would
have been better rst to state what the bank has power to do, and then
to specify the circumstances in which it is entitled to exercise that power.
The result would look something like this (stripping out the unnecessary
capitals):
The bank may require repayment in full of the balance on the account if the
cardholder breaks this agreement and the principal cardholder fails to comply
with the terms of a notice served by the bank.
Consider also this example, cited in Gowers, The Complete Plain Words,
29
involving a split innitive. The rule against splitting the innitive is not
followed as strongly today as it once was. But in this example the crescendo
of splitting is so extreme that it hinders comprehension:
29
3rd edn (London: Penguin, 1987), p. 145.
140 Modern Legal Draf t i ng
The tenant hereby agrees:
(i) to pay the said rent;
(ii) to properly clean all the windows;
(iii) to at all times properly empty all closets;
(iv) to immediately any litter or disorder shall have been made by him or
for his purpose on the staircase or landings or any other part of the said
building or garden remove the same.
Frequently litigated words and phrases
Chapter 2 discussed the dangers in over-reliance on precedent as an aid to
interpretation. Traditional legal drafters tend to assume that well-litigated
words and phrases should be retained, in the belief that documents benet
from this judicial critique of meaning. However, it would be more logi-
cal to be suspicious of constantly litigated words and phrases, for the fre-
quency of litigation suggests an inherent problem with meaning. Any word
or phrase that has produced frequent litigation should surely be shunned.
Let us consider two examples, familiar to all legal drafters: best endeavours
and forthwith.
Best endeavours is commonly used by contracting parties: they promise
to use their best endeavours to carry out a particular act. Sometimes the use
of the phrase suggests a compromise, neither party being willing to accept
a clear and unambiguous statement of their respective obligations.
30
This
can be seen in the following example, taken from an English case:
The sellers will use their best endeavours to secure delivery of the goods on
the estimated delivery dates from time to time furnished, but they do not
guarantee time of delivery, nor shall they be liable for any damages or claim
of any kind in respect of delay in delivery.
31
The phrase is not conned to contracts. It is used in various contexts,
including letters, statutes, andprofessional undertakings. Drafters whouse it
shouldrecognise its inherent vagueness. Goff J put it plainly in1972, whenhe
30
M. D. Varcoe-Cocks, Best Endeavours (1986) 83 Law Society Gazette, p. 1992.
31
This was the contractual term considered in Monkland v Jack Barclay Ltd [1951] 1 All ER
714, CA.
What t o Avoi d when Draf t i ng 141
asked rhetorically whether anything could be less specic or more uncertain
thananexhortationtouse best endeavours. Inhis view, there was absolutely
no criterion by which best endeavours were to be judged.
32
The numerous
cases on the meaning of the phrase support this view.
33
In professional
undertakings its use is particularly dangerous, given the inherent vagueness
and open-endedness it introduces into the obligation undertaken. For this
reason, the Law Society of England and Wales has warned solicitors against
giving a best endeavours undertaking.
34
The word forthwith has also led to a great deal of litigation. It is too
open-ended to admit of certainty. Some of the many judicial discussions are
mentioned in the footnote.
35
To these two examples we could add many more. All give the lie to the
belief that judicial expositionof the meaning of a wordor phrase demands its
retention. In reality, the opposite is often the case. Drafters should beware
of frequently litigated words or phrases, lest they incorporate into their
documents the very uncertainty that led to the litigation.
Foreign words and phrases
More commonly thanordinary writers, lawyers delight inforeignwords and
phrases usually Latin or lawFrench. Many of these words and phrases have
32
Bower v Bantam Investments Ltd [1972] 3 All ER 349 at 355.
33
In the rst edition, we cited 26 cases over the preceding 20 years where the courts were
called on to determine the meaning of best endeavours and similar obligations. For the
purposes of this edition we made an electronic database search. As at January 2006, the
search produced the following results for the term best endeavours: 2335 (UK), 1385
(Australia), 52 (USA, limited search only), 435 (Canada). By results, we mean the number
of times the term best endeavours is mentioned in the database. The term might be
mentioned a number of times in a case, and not all cases involve an argument about its
meaning. Nevertheless, the exercise suggests that the term is heavily litigated.
34
Nicola Taylor (ed.), The Guide to the Professional Conduct of Solicitors, 8th edn (London:
The Law Society, 1999), p. 355.
35
Staunton v Wood (1851) SC 15 Jur 1123 (delivery forthwith could be within 14 days);
Re Southam; ex parte Lamb (1881) 19 Ch D 169 (notice entered on a Friday and given
the following Monday not given forthwith); Bontex Knitting Works Ltd v St Johns Garage
(1943) 60 TLR 44, 253 (one hours delay in delivery not delivery forthwith); R v Secretary
of State for Social Services; ex parte Child Poverty Action Group, The Times 10 October 1988
(duty to submit a social security claim forthwith did not arise until the department was
in possession of the basic information to enable a claim to be determined).
142 Modern Legal Draf t i ng
long since disappeared from ordinary English speech and writing. Lawyers
themselves may only half-understand them. Examples are:
r
de bene esse: for the time being (said of something which sufces for now
but may be replaced by something better)
r
en ventre sa mere:
36
conceived but not born
r
force majeure: an event which can neither be anticipated nor controlled
r
inter alia: among other things
r
inter se: among themselves
r
inter vivos: between living people
r
mutatis mutandis: with the necessary changes made
r
per stirpes: by the stocks of descent
r
pro tanto: to that extent
r
res ipsa loquitur: the reason is self-evident (literally: the thing itself speaks)
r
toties quoties: as often as required
r
ultra vires: beyond power
Phrases of this kind are best abandoned, for three reasons. First, the aver-
age reader will not understand them. Second, their foreign origins convey a
sense of precisionandtechnicalitywhichtheysimplydonot possess.
37
Third,
they are not true legal terms of art. Almost always they can be discarded for
an equivalent in modern English.
Long sense-bites
Another characteristic of traditional legal drafting is long slabs of unbro-
ken text long sense-bites. When combined with a deliberate absence of
punctuation and a lack of paragraphing and indentation, this produces
impenetrable text, confounding comprehension. An excessive example can
be seen in Panel 6, a leviathan clause taken from a standard-form mortgage
formerly used by a leading New Zealand bank.
36
A phrase condemned as long ago as 1840 as repulsive: Gael, A Practical Treatise on the
Analogy between Legal and General Composition (Butterworths: London, 1840), p. 29. For
a modern parody, see R. Atherton, En Ventre sa Frigidaire (1999) 19 Legal Studies, p. 139.
37
For example, see Delnorth Pty Ltd v State Bank of New South Wales (1995) 17 ACSR 379
(NSW Sup Ct, Cohen J) on the inherent uncertainty of mutatis mutandis; Schellenberg v
Tunnell Holdings Pty Ltd (2000) 74 ALJR 743 (Australian High Court) on the precise scope
of the doctrine of res ipsa loquitur (notably, no judge in this case suggests a translation,
perhaps assuming that for their readers it is unnecessary).
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144 Modern Legal Draf t i ng
Techniques are available to break text into digestible slices. Some such
as the use of shorter sentences we discuss in Chapter 6. Others, modern
drafters would regard as inferior. For example, old-style documents helped
to signal their contents and to guide their readers by putting whole words
or phrases in capital letters. Located appropriately, this did much to break
up dense text. Common examples include:
r
NOW THIS DEED WITNESSETH
r
ALL THAT
r
TO HOLD
r
PROVIDED THAT
r
AND IT IS HEREBY AGREED AND DECLARED
r
IN WITNESS
A typical block of type broken up like this can be seen in Panel 7. Use
of capitals in this way (along with the occasional use of brackets) reduced
enormously long sentences to a series of shorter passages which, in context,
could be digested more easily.
Matters have improved somewhat in recent years. Nowadays, legal docu-
ments exhibit muchmoreparagraphing, sub-paragraphingandindentation.
Even so, lengthy slabs of text still appear, particularly in conveyancing doc-
uments. These formidable blocks of type should be broken up, if not into
shorter sentences then certainly into shorter sense-bites. We return to this
topic in Chapter 6.
Legalese and jargon
Legalese is more than merely the language of lawyers. Rather, it is the
language that lawyers would not use in ordinary communication but for
the fact that they are lawyers.
38
Consider the following extract from a letter
from one lawyer to another:
We have nowseen our client as regards preliminary enquiries and accordingly
return replies to the same herewith together with any enclosures referred to
therein.
38
Stanley Robinson, Drafting Its Substance and Teaching (1973) 25 Journal of Legal Edu-
cation, p. 516.
What t o Avoi d when Draf t i ng 145
NOW THIS DEED WITNESSETH as follows:-
1. IN consideration of the sum of Nineteen thousand seven
hundred and fifty pounds (19,750) paid to the Lessor by
the Tenant on or before the execution hereof (the receipt
whereof the Lessor hereby acknowledges) and of the rents
and covenants hereinafter reserved and contained and on the
part of the Tenant to be paid observed and performed the
Lessor hereby demises unto the Tenant ALL THAT the upper
maisonette being 25 Anyroad Derrytown
(hereinafter called "the maisonette") forming part of the
said property known as Numbers 25 and 27 Anyroad
Derrytown Plymouth aforesaid (hereinafter called "the
building") including one half part in depth of the
structure between the floors of the maisonette and ceilings
of the lower maisonette and (subject to clause 7(1) hereof)
the internal and external walls of the maisonette to the
same level and the land and structure of the building above
the maisonette including the roof space gutters downpipes
windows and window frames TOGETHER WITH the front garden
and a portion of the rear garden which is delineated on the
plan annexed hereto and thereon edged in green AND TOGETHER
ALSO with the pathway (including the gate and gateway)
edged blue on the said plan AND TOGETHER ALSO with the
easements rights and privileges mentioned in the second
schedule hereto subject as therein mentioned but EXCEPTING
AND RESERVING as mentioned in the third schedule hereto TO
HOLD the maisonette hereby demised unto the Tenant from the
first day of April One thousand nine hundred and eighty for
the term of ninety nine years paying therefor yearly during
the said term the rent of Thirty pounds (30) by equal
yearly payments (in advance) on the twenty fifth day of
December in every year free of all deductions whatsoever
the first payment thereof being a proportionate part of the
said annual sum calculated from the date hereof to the
twenty fifth day of December next to be paid upon the
signing hereof
Panel 7 Use of capitals to break up text
146 Modern Legal Draf t i ng
Herewith and therein are pure legalese. So is the same, a phrase for
which lawyers have a fondness verging on the pathological. (As regards
is not strictly legalese, since its use is not specic to the legal profession;
it is merely ugly English.) The sentence could have been written more
simply:
We have seen our client about preliminary enquiries and so can return replies
to them together with the enclosures referred to.
Even better would be:
We return replies to your preliminary enquiries.
The concept of returning replies reects the English practice by which
preliminary enquiries were usually made on a two-column form, with the
left column for the enquiries and the right column for the replies. Even so,
no misunderstanding would be caused by an even shorter version:
We reply to your preliminary enquiries.
Of course, legalese is not conned to letters between solicitors. It spills
over into documents and letters that lawyers draft for clients. It is also rife
in standard forms printed by publishers for use in legal ofces. Here is an
extract from a standard form of executors oath:
To the best of my/our knowledge information and belief there was no land
vested in the said deceased which was settled previously to his/her death and
not by his/her Will and which remained settled land notwithstanding such
death.
This bears many of the marks of legalese. Knowledge, information and
belief are synonyms or near-synonyms. They could have been deleted and
replaced with: so far as I/we know. The double negative (no land . . . not
by his/her Will) occurs frequently in legal documents, despite being a hin-
drance tounderstanding. The saiddeceased has animpersonal tone a tone
which is typical and seemingly inevitable in legal forms. Notwithstanding
is a word rarely seen in everyday communication between lay writers. The
paragraph could have been written:
So far as I/we know, the deceased owned no settled land which remained
settled land after his or her death.
What t o Avoi d when Draf t i ng 147
Allied to legalese is jargon, by which we mean language peculiar to
a profession. The Oxford English Dictionary gives as its original mean-
ing the inarticulate utterance of birds, or a vocal sound resembling it;
twittering; chattering. Jargon abounds in legal and quasi-legal documents.
Jargon may be acceptable in a document that a lawyer drafts solely for
another lawyer, but it is not acceptable in a document that a lawyer
drafts for a client. Almost certainly the client will nd the language
stilted, and may well have difculty understanding it. Rarely can there be
any justication in drafting a document that the client nds difcult to
understand.
To illustrate the use of jargon, consider the following clause in a will:
I hereby revoke all Wills made by me at any time heretofore. I appoint
my Wife, Jean Heath, and Robert High, of Denton Road, Wolverhampton,
aforesaid, Plumber, to be my Executors, and direct that all my Debts and
Funeral Expenses shall be paid as soon as conveniently may be after my
decease.
At any time heretofore and aforesaid are pure jargon; both are unnec-
essary. Also unnecessary is the description Plumber unless two persons
called Robert High live at Denton Road, Wolverhampton.
39
Unnecessary,
too, is hereby, of which we say more below. All these words and phrases
give the clause a legal feel without serving any legal purpose. Legal feel is
further heightened in this example by jargon-like techniques. There is an
overuse of capitals, as though virtually every noun needed one. Also, the
direction to pay debts and funeral expenses as soon as conveniently may be
employs quaint language but adds nothing, since personal representatives
have a duty to pay debts and funeral expenses. It would have been simpler
and clearer to write:
I revoke all previous wills.
40
I appoint as my executors my wife Jean Heath,
and Robert High of Denton Road, Wolverhampton.
39
The legal professions zeal for stating occupations may hark back to the Statute of Additions
1413, which required court writs to contain details of the defendants place of abode and
occupation (mistere, translated as mystery, an obsolete word for trade or profession).
40
Strictly, previous is tautologous, since a person cannot revoke a will that is not yet made.
But it probably helps to clarify meaning to a non-lawyer.
148 Modern Legal Draf t i ng
Hereby
Hereby deserves special mention. Drafters in the traditional style have a
particular afnity with it. Nothing is ever simply done; it is hereby done.
Presumably, the drafters consider that hereby adds precision. But this is
not always the case hereby can in fact introduce ambiguity. For example,
in a New Zealand case a section in a statute gave landowners the right to
compensation for loss or damage suffered from the exercise of any of the
powers hereby given. Did hereby mean by this section, or by this Part of the
Act, or by this Act? It took an appeal to the New Zealand Court of Appeal
to decide that it meant by this Act.
41
It is true that hereby cangive a particular emphasis toanaction. But even
thenit is usually legal surplusage. For example, inanAustraliancase, a tenant
purported to exercise an option to renew a lease by sending a letter which
began, plainly enough: We would hereby like to exercise our option to re-
newthe lease. Were these words sufcient to indicate an intention, then and
there, toexercise the option, or were theymerelyanexpressionof intentionto
exercise the optionformally onsome later occasion? The judge heldthat they
amounted to an intent to exercise the option then and there. In reaching this
conclusion, the judge considered that the use of hereby was relevant. It was
a very strong indication that the option was being exercised by the letter.
42
Oncloser examination, however, it is obvious that the uncertaintyarose from
thepoliteexpressionwewouldliketo anexpressiondisplayingadifdence
of tone appropriate in conversation but not in the exercise of legal rights.
The judge couldhave reachedthe same conclusionevenwithout the presence
of hereby. Similar wording minus the hereby has been held sufcient to
exercise an option. For example, in another Australian case, the words we
intend to exercise the option to re-new the lease were held to be sufciently
clear to amount to an operative act as opposed to a mere statement of
future intention. They constituteda clear andunequivocal act toexercise the
option.
43
41
Superior Lands Ltd v Wellington City Council [1974] 2 NZLR 251.
42
Riltang Pty Ltd v L Pty Ltd (2002) 11 BPR 20,281 at 20,286 (para [24]).
43
Young v Lamb (2001) 10 BPR 18,553 at 18,557 (paras [28], [30]).
What t o Avoi d when Draf t i ng 149
Terms of art
To be distinguished from the unthinking and unnecessary use of jargon is
the appropriate use of technical terms terms of art. Like other profes-
sions, law contains an irreducible minimum of terms of art, that is, terms
which have a peculiar and xed technical meaning, unmodied by context,
and which are difcult and sometimes impossible to express in any other
way.
44
Examples are bailment, hearsay, deed (in contrast to an agreement
not under seal), delivery (in the sense of the act which brings a deed into
operation), and certiorari (as in an order of certiorari).
However, we should not exaggerate the problems that terms of art might
be thought to pose for drafters who wish to use modern, standard English.
The number of genuine legal terms of art (in this narrow sense) is small.
45
More often than not, supposed terms of art are mere jargon. One writer
suggests that term of art is merely lawyers jargon for lawyers jargon.
46
Many familiar legal words and phrases which bear the illusion of terms
of art would be better abandoned, for two chief reasons. First, the illu-
sion would disappear. Second, other words and phrases are better suited
to the task. To illustrate: is moiety more certain than half, or dwelling-
house more certain than house or dwelling? Or is the following standard
description
ALL THAT piece or parcel of land together with the messuage or dwelling-
house erected thereon or on some part thereof situate at and known as No 3
St Andrew Street
any more precise than the simple description 3 St Andrew Street?
44
In Skerrits of Nottingham Ltd v Secretary of State for the Environment, Transport and the
Regions [2000] 3WLR511at 518, Robert Walker LJ describeda termof art as anexpression
which is used by persons skilled in some particular profession, art or science, and which
the practitioners clearly understand even if the uninitiated do not. The court held that
curtilage (as in the curtilage of a building) is not a term of art.
45
Research in the United States suggests that in property documents the proportion of judi-
cially dened terms is less than 3 per cent: B. Barr, G. Hathaway, N. Omichinski and
D. Pratt, Legalese and the Myth of Case Precedent (1985) 64 Michigan Bar Journal, p. 1136.
46
David S. Levine, in the chapter My Client Has Discussed Your Proposal to Fill
the Drainage Ditch with his Partners: Legal Language, in State of the Language, ed.
Leonard Michaels and Christopher Ricks (Berkeley: University of California Press, 1980),
p. 403.
150 Modern Legal Draf t i ng
A typical example of jargon in the guise of term of art is the phrase
without prejudice to. The phrase is commonly used to preserve the force
of one provision while at the same time expressing another contrasting or
overlapping provision. Here is an example from a tenants covenant in a
lease:
Without prejudice to sub-clause (c) hereof not to create any interest in the
Premises or any part thereof derived out of the Term howsoever remote or
inferior and in particular but without prejudice to the generality of the fore-
going not to underlet the Premises or any part thereof.
In this context, without prejudice to has no legal magic demanding its use.
Where it rst appears in this example, it can be replaced by a simple English
wordsuchas despite; where it secondappears, it canbe replacedby a phrase
such as without affecting or without limiting.
Without prejudice also has an entirely different usage to introduce a
letter writteninanattempt tosettle a dispute. Inthis context, its purpose is to
claima formof privilege, to ensure that the letter cannot be used as evidence
in court if the attempted settlement fails. It is legal shorthand for without
prejudice to the position of the writer of the letter if the negotiations . . .
propose[d] are not accepted.
47
But this usage, too, is jargon in the guise of
term of art. It also confuses readers. An English survey shows that a large
percentage of non-lawyers misunderstand the phrase and are liable to be
misled about its intended effect.
48
Moreover, its use does not guarantee
privilege for the letter. Privilege depends on the rules of evidence that apply
to the letter in the context in which it was written, not on the knee-jerk
addition of without prejudice. And the relevant rule of evidence is not
dependent on use of the phrase without prejudice. If it is clear from the
surrounding circumstances that the parties were seeking to compromise the
court case, evidence of the content of their negotiations is, as a general rule,
inadmissible at the trial.
49
47
Walker v Wilsher (1889) 23 QBD335 at 337 (Lindley LJ). For a later application, see Unilever
plc v The Procter & Gamble Co. [1999] 1 WLR 1630.
48
Mark Adler, Bamboozling the Public [1991] New Law Journal, p. 1032: only 10 out of
77 people with some experience of lawyers clearly understood the meaning; and of those
who did not understand, 33 (or 43%) were under a misapprehension which seriously
threatened their rights.
49
Rush & Tompkins Ltd v Greater London Council [1989] AC 1280 at 1299 per Lord Grifths.
What t o Avoi d when Draf t i ng 151
Peculiar linguistic conventions
Legal writing exhibits lingustic quirks that set it apart from other kinds of
writing. These quirks are easily recognisable, and are almost always unnec-
essary. To take a simple illustration, lawyers habitually use words that have
long since disappeared from ordinary speech. Examples are: hereby, herein,
hereunder, hereinafter, heretofore, herewith, wherein, whereas (but still stan-
dard English when used to introduce a contrast), thereof, thereto, therein,
therefor, thereunder. These words like other examples considered earlier in
this chapter give legal writing a distinctive voice, but are quite unnecessary
for legal efcacy. Usually they can be discarded entirely, or at least replaced
by more modern equivalents.
In addition, lawyers often adopt linguistic conventions that have no basis
in law, logic or modern usage. Examples are:
r
of even date herewith, instead of dated the same as this document
r
these presents, instead of this document
r
the date hereof , instead of today
r
situate at, instead of at or in
r
the county of Devon, instead of Devon
r
my said mother, instead of my mother
r
for the purpose of identication only more particularly delineated,
50
instead of for identication only or more particularly delineated
r
jointly and severally (a phrase we consider further in Chapter 7), instead
of separately and together.
In all these examples, the modern idiomatic equivalent is just as legally
effective as its quirky counterpart.
Sometimes more radical treatment is required than merely substitut-
ing a modern equivalent. Examples are the formula customarily used to
begin and end the operative part of a deed: now this deed witnesseth
51
and
in witness whereof the parties hereto have hereunto set their hands and
seals the day and year rst hereinbefore written. Both these formalisms
50
A phrase which is self-contradictory and should not be used: Neilson v Poole (1969) 210
EG 113. See further discussion of the use of plans in Chapter 6.
51
Verbs with -th endings remain prevalent in legal documents to this day, though the usage
was regional even in Shakespeares day: Robert McCrum and others, The Story of English,
3rd edn (London: Faber & Faber, 2002), p. 101.
152 Modern Legal Draf t i ng
can be discarded, without threat to the legal efcacy of the deed (see
Chapter 6).
Another quirk is the insistence on spelling dates in words, rather than
simply using gures: thus, two thousand and six, instead of 2006. Yet
another, doubtless retained out of a sense of excessive caution, is the insis-
tence on using both words and gures when referring to sums of money,
as in the following: in consideration of fty thousand pounds (50,000).
This legal convention is unnecessary. Words alone, or gures alone, will
sufce; and gures, being more instantly recognisable to the eye, should
be preferred. The convention may also be counterproductive if there is
a discrepancy between the words and gures. To some extent, the dis-
crepancy may be resolved by the principle that where a commercial doc-
ument displays a discrepancy between words and gures, the words are
presumed (rebuttably) to prevail.
52
This principle may have its origins in
the practical reality that it is harder to write words than gures, and so mis-
takes are more likely to occur in the gures than in the words.
53
However
that may be, the principle always yields to context,
54
a sure invitation to
litigation.
Linguists have long known of these and other oddities of legal language.
Two leading linguists, David Crystal and Derek Davy, in their 1969 analysis
Investigating English Style, were intrigued by the rarity in legal documents of
substitute words like he, she, they, this, that and it.
55
(They might also have
observed the corresponding rarity of the possessive forms of these words.)
The most notable omission they found to be it: where used in phrases
like It is agreed, it is the subject rather than a substitute for something
mentioned before. Crystal and Davy also highlighted a number of other
characteristics:
r
Adverbs and adverbial phrases or clauses are placed next to the verbs
they modify. This results in oddities such as a proposal to effect with the
52
Saunderson v Piper (1839) 5 Bing (NC) 425; 132 ER 1163 (a case involving a discrepancy
between words and gures in a bill of exchange but pre-dating the legislation by which
words prevail over gures in negotiable instruments); Re Hammond [1938] 3 All ER 308;
Coote v Borland (1904) 35 SCR (Can) 282 at 284.
53
Bankstown Airport Ltd v Noor Al Houda Islamic College Pty Ltd (2003) NSWConvR 56038
at [27].
54
Re Hammond [1938] 3 All ER 308 at 309.
55
David Crystal and Derek Davy, Investigating English Style (London: Longmans, 1969),
p. 202.
What t o Avoi d when Draf t i ng 153
Society an assurance (rather than a proposal to effect an assurance with
the Society).
r
Sentences are unduly long. Sequences of connected information are put
into complex sentences capable of standing alone, instead of in short
sentences with linking devices to show continuity.
r
Postmodifying elements are inserted at those points in a group where they
will most clearly give the required sense. Though the aim is precision, the
practice produces oddities such as the payment to the owner of the total
amount (rather than the payment of the total amount to the owner)
and any instalments then remaining unpaid of the rent (instead of any
instalments of the rent then remaining unpaid).
56
Nouns instead of verbs
Another linguistic convention is the use of noun phrases instead of verbs
the practice of nominalisation. This convention is not peculiar to legal
writing; it also infects bureaucratic and ofcial language. But in legal docu-
ments it is endemic. For example, parties tolegal documents dont decide to
do something; instead, they make a decision. They dont resolve, but pass
a resolution. They dont sever a joint tenancy, but effect a severance. This
practice of nominalisation might be thought to achieve a certain formality
of tone, but it is at the expense of effective communication. Verbs, especially
strong verbs, communicate more effectively. They help make writing more
direct.
Overuse of the passive
Traditional legal drafters slip easily into the passive, instinctively more at
home withthe indirect, formal style it exudes. Yet all writingtexts including
legal writing texts say that the active voice communicates more effectively.
The active is more direct, driving home the message. The passive is less
direct, muddying the message.
The passive can also obscure who is to do something, causing the drafter
to overlook important matters. For example, the constitution of a company
56
Ibid., pp. 204, 201, 213, 205 respectively.
154 Modern Legal Draf t i ng
may provide: A meeting of the Board is to be called each month. Who is
to call the meeting? If this clause had been drafted in the active voice, that
question would have been obvious to the drafter. The active voice requires
the drafter necessarily to identify the person with not only the power but
also the duty to call the meeting. That could be important in deciding
whether the meeting has been called validly that is, by the right person.
Some texts imply that drafters should never use the passive, but that is
going too far. On occasions the passive is convenient for example, where
the doer of anact is intentionally left unstated. Our point is that lawyers tend
to write in the passive instinctively. It is better to avoid the passive, except
where the drafter makes a reasoned decision to use it.
Deeming
Deeming is common in legal documents. It is generally used to create a
legal ction: a thing is deemed to be something else, or an event is deemed to
have occurred, despite evidence to the contrary. To a non-lawyer, the device
must seem contrived. To a lawyer, however, it is second nature. Indeed, the
more openly ctional a statement, the more readily lawyers accept deeming.
So a lawyer can draft, with hardly a second thought, In this contract, black
is deemed to be white, even though in the real world the statement is patent
nonsense. The deeming makes it acceptable.
The main problem with deeming is the articiality it produces.
57
This
impairs comprehension. In words betting a Lewis Carroll character, Cave
J said in 1891:
Generally speaking, when you talk of a thing being deemed to be something,
you do not mean to say that it is that which it is to be deemed to be. It is
rather an admission that it is not what it is to be deemed to be, and that,
notwithstanding it is not that particular thing, nevertheless . . . it is to be
deemed to be that thing.
58
Lawyers also use deemed to mean considered to be, or adjudged to be,
or simply is. Here the usage is not so much to create a legal ction as to
57
See Burrell & Kinnaird v Attorney General [1937] AC 286, HL.
58
R v Norfolk County Council (1891) 60 LJ QB 379 at 380.
What t o Avoi d when Draf t i ng 155
satisfy a state of fact. For example, a lease may provide that a tenant shall
be deemed to be in default if the rent is in arrears for seven days. What is
meant is that the tenant is in default if the rent is in arrears for seven days.
The deeming could be discarded.
59
Denitions
Stretched denitions
Often found with deeming provisions are stretched denitions. By
stretched, we mean denitions that give a word a meaning beyond what
the reader would expect. This unhelpful technique is particularly pernicious
where the word has a well-understood lay meaning. Sometimes, the tech-
nique produces unintended humour, as in Australian statutes that dene
sh to include beachworm and ngerprint to include toeprint.
60
The dangers of stretched denitions, whether or not in conjunction with
deeming provisions, are well-documented.
61
They can impair commu-
nication between drafter and reader. They can trap the drafter as well as
the reader. And they are an easy source of ridicule, inviting caricature of
lawyers language.
62
Stanley Robinson and Reed Dickerson call stretched
denitions Humpty Dumptyisms, echoing Humpty Dumptys scornful
assertion: When I use a word, it means just what I choose it to mean
neither more nor less.
63
Stretched denitions overlook the reality that language is a form of com-
munication based on convention and habit. To succeed, communication
must evoke a response in the person to whom it is addressed. That response
59
See Barclays Bank Ltdv InlandRevenue Commissioner [1961] AC509at 541(LordDenning).
60
Fisheries Management Act 1994 (NSW), s 5; Crimes Act 1958 (Vic), s 464.
61
See E. L. Piesse, Elements of Drafting, 10th edn (eds J. K. Aitken and Peter Butt, Sydney:
Lawbook Co., 2004), p. 49; Robinson, Drafting, p. 58; Dickerson, Fundamentals of Legal
Drafting, 2nd edn (Boston and Toronto: Little, Brown and Co., 1986), p. 140.
62
As in the spoof case of R v Ojibway (1965) 8 Criminal Law Quarterly, p. 137 (denition
of small bird stretched to include horse); Nada Shah v Sleeman (1917) 19 WALR 119
(denition of domestic animal stretched to include camel).
63
Lewis Carroll, Through the Looking Glass (Chicago: Wellington Publishing, 1989), p. 127.
For a legal analysis of this passage, see Lord Hoffmann in Investors Compensation Scheme
Ltd v West Bromwich Building Society [1998] 1 WLR 896 at 914, HL.
156 Modern Legal Draf t i ng
depends on the addressees existing store of usage, and that store of usage
varies from person to person. For as Richard Robinson pointed out in his
book Denition,
64
a word is a human contrivance, and its meaning can only
be what some person means by it. Words do not have an inherently correct
meaning; there is no natural relationship between a word and what it refers
to. To quote Justice Holmess famous aphorism, a word is not a crystal,
transparent and unchanged, but rather is the skin of a living thought and
may vary greatly in color and content according to the circumstances and
the time in which it is used.
65
Nevertheless, most words in everyday usage
convey a commoncore of understanding, and the readers task is made more
difcult when a word with an accepted core of meaning is stretched to mean
the unexpected.
Over-dening
Over-dening bedevils modernlegal documents. It is a comparatively recent
phenomenon. Drafters feel compelled to dene every term, even terms that
are used once only or in one clause only. The result is page after page of
denitions. The document becomes long and unwieldy. The reader is forced
to keep jumping between substantive provisions and denitions.
Adenitionis unnecessary if the meaning of the wordor phrase is clear or
can be readily ascertained fromthe context. Also, a word or phrase need not
be dened merely because it is technical or unusual. However, if a denition
is genuinely required, it should not be shunned merely because the term is
used only once or twice.
66
The practice has been condemned,
67
but by no
means deserves the scorn poured on it.
68
Sometimes denitions are used to dene words or phrases that appear
only in other denitions. This incestuous device eases the drafters task, but
at the cost of irritating the reader.
To help reduce dependence ondenitions, more use could be made of the
parliamentary drafters device of describing rather than dening. To take an
example from England and Wales, s 28 of the Crime and Disorder Act 1998
states:
64
(Oxford: Clarendon Press, 1950), p. 37.
65
Towne v Eisner 245 US 418 at 425 (1918).
66
See, e.g. Fire and Rescue Services Act 2004 (UK), ss 19, 20, 32, 33.
67
See Dickerson, Fundamentals of Legal Drafting, p. 150.
68
See Robinson, Denition (Oxford: Clarendon Press, 1950), p. 80.
What t o Avoi d when Draf t i ng 157
An offence is racially aggravated if
The private drafter would almost certainly be drawn in a dictionary-type
denition, such as:
Racially aggravated means . . .
Some commonly encountered denitions are strictly redundant because
they are supplied by statute. For example, most common law jurisdictions
have statutory provisions along the following lines:
r
month means calendar month
r
person includes a corporation
r
the masculine includes the feminine and vice versa
r
the singular includes the plural and vice versa.
69
Subject to a qualication mentioned below, to repeat the effect of these
provisions is legally superuous. And as we comment in our discussion of
inclusive language in Chapter 6, in a specially drawn modern document the
formula masculine includes feminine should be unnecessary.
In like vein, most common law jurisdictions have statutory provisions
to the effect that the benet of a covenant made with more than one per-
son is joint and several.
70
To state this in the document is also superu-
ous. In contrast, however, statute generally says nothing about the burden
of a covenant made by more than one person. Hence it is common to
see provisions spelling out the position for both the benet and the bur-
den. This achieves a nice symmetry, which can hardly be open to much
criticism.
However, let us now add a qualication to this discussion. Sometimes it
is desirable to indicate the intended meaning of words and phrases, even if
they are enshrined in statute. Lay readers cannot be presumed to know the
statutory provisions. Adocument ought to be as comprehensible as possible
on its face, and as complete in itself as it can reasonably be. As so often, this
calls for ne judgment by the drafter. Documents can be so cluttered with
legally superuous material that they verge on the absurd.
69
In England and Wales, the provision is found in s 61 of the Law of Property Act 1925.
70
In England and Wales, the provision is found in s 81 of the Law of Property Act 1925. For
the meaning of joint and several, see Chapter 7.
158 Modern Legal Draf t i ng
Disguise of an operative element
Adeviant formof denition is the stuffed denition.
71
By stuffed, we mean
a denition that carries some operative element. An example, taken from a
contract for the sale of land, is:
Completion date means 30 June 2006, and on that date the purchaser must
pay the purchase price and relieve the vendor of liability for all rates and taxes
payable on the property.
This goes further than merely dening the term completion date. In the
guise of a denition, it imposes contractual obligations. The result is to hide
operative obligations in a part of the document where the reader does not
expect to nd them. The technique does not render the document invalid,
but it irritates the reader and hinders efcient understanding.
Again, consider the following denition from a trust deed:
The specied period means a period beginning at the date of execution of
these presents and enduring for eighty years and the said number of years
shall be the perpetuity period applicable hereto.
The purpose here is todene the perpetuityperiodapplyingtothe document
as the specied period. It would be better to declare in a main clause simply
that the specied period is the perpetuity period, and then to dene the
specied period as 80 years beginning today. Better still would be to remove
the reference to specied period altogether, and simply say:
The perpetuity period applicable to this deed is 80 years beginning today.
Excessively detailed denitions
Not content merely withincorporating denitions of questionable necessity,
many drafters attempt to extend them to cover every conceivable circum-
stance. This results in denitions of excessive length and detail.
Excessively long and detailed denitions can be counterproductive. In
attempting to be all-inclusive, the drafter may unintentionally omit some-
thing which should have been included. The courts might then apply the
maxim expressio unius est exclusio alterius (the expression of one thing
excludes another; see Chapter 2) and treat the exclusion as deliberate. The
71
A Reed Dickerson phrase: Fundamentals of Legal Drafting, p. 151.
What t o Avoi d when Draf t i ng 159
drafters excessive zeal has thenservedonly to create loopholes. LordWilber-
force alluded to this risk in Seay v Eastwood, a case dealing with legislation
to control gambling. In the context of a statutory denition of bookmaker,
he said that it was impossible to frame denitions to cover every variety
of gambling activity: attempts to do so may indeed be counter-productive,
since each added precision merely provides an incentive to devise a variant
which eludes it.
72
Unless the context requires otherwise
Drafters conventionally include in their denition clause the cautionary
rider unless the context requires otherwise, or where the context so admits,
or the like. The purpose is clear enough: to prevent difculties of interpreta-
tion if the drafter inadvertently uses a dened word in an undened sense.
Two quite different views may be put about this practice. The rst view is
based on the premise that careful drafters always use a dened term in its
dened sense. Drafting lapses of this kind should not occur particularly
in an era of word processors with search facilities, where every occurrence
of a word can be hunted down and checked for consistency of use. On this
view, the rider should be unnecessary.
73
And, of course, its presence does
not preclude litigation over meaning, because it leaves open the question
whether the context in fact requires or admits a meaning different from
the dened meaning.
74
The second view is based on the premise that the meaning of a word or
phrase always yields to its context. A judge can nd that the same word or
phrase is used in different senses in the one document. In particular, a judge
can nd that a dened word or phrase is used in a non-dened sense. So
whether or not the rider is used, a judge is free to interpret the document as
if it were used. So there can be little or no harm in including it.
72
[1976] 1 WLR 1117 (HL) at 1121.
73
See David Mellinkoff, Legal Writing: Sense and Nonsense (St Paul, Minnesota: West Publish-
ing Co., 1982), p. 24: The formula abandons the client for whom the writing was prepared
and the reader to whom it was addressed. It leaves them to the tender interpretation of
strangers. If you dene, you create an important part of the context. It is your responsibility
to adjust your denition to t your context, or your context to t your denition, or to
forget about denition as a route to precision. For other objections, see Giles A. Morgan,
Interpretation Clauses: a Cautionary Tale (1996) 140 Solicitors Journal, p. 838 (where the
context otherwise requires).
74
As in Blue Metal Industries Ltd v Dilley [1970] AC 827 (PC); Floor v Davis [1980] AC 695
(PC).
160 Modern Legal Draf t i ng
We return to the topic of denitions in Chapter 6, where we consider
their proper use in modern documents.
Overuse of capitals
Overuse of capital letters is another mark of legal writing. The reason is
primarily historical: see the ancient examples in Panel 8.
Today, initial capital letters are commonly used in legal documents to
identify dened terms. This convention is so well-established that it may
be difcult to discard, but care should be taken not to carry the practice to
excess. We consider the convention further in Chapter 6.
There are two main objections to excessive use of capitals: the effect on
the reader, and the inuence on interpretation.
Effect on the reader
Psychologists donot agree onhowthe mindreads words. The prevailingview
used to be that words are recognised as shapes.
75
Readers, it was said, absorb
words because they have learned what words look like, in the same way
that they recognise trees, cars, crockery and faces.
76
More recent evidence
suggests that we use the letters of a word to recognise it, though the differing
weight given to the importance of letter sequence (serial letter recognition)
or the whole word (parallel letter recognition) makes analysis difcult.
77
In any event, modern readers, unused to the historical practice of frequent
capitals, may nd them irritating. Further, overuse of capitals offends the
principle that legal writing is simply a version of ordinary writing; it should
follow the rules and conventions of literate English.
78
75
Frank Smith, Writing and the Writer (London: Heinemann, 1982), p. 145.
76
Frank Smith, Reading, 2nd edn (Cambridge: Cambridge University Press, 1985), p. 107.
77
See Kevin Larson, The Science of Word Recognition (2004), at <www.microsoft.com/
typography/ctfonts/WordRecognition.aspx>.
78
David Mellinkoff, Legal Writing: Sense and Nonsense, p. 44. See also Robert C. Dick, Legal
Drafting in Plain Language, 3rd edn (Toronto: Thomson Canada, 1995), p. 112: Capital
letters should be used only where necessary. In so many documents words such as Grantor,
Grantee, Guarantor and Corporation are capitalized. Most of these capitalizations are
completely unnecessary and are in fact visually disconcerting. In writing a letter to a friend,
a lawyer would omit almost all capitals, except for words at the beginning of sentences.
Much the same procedure should be followed in drafting.
What t o Avoi d when Draf t i ng 161
Panel 8 Historic use of capitals
162 Modern Legal Draf t i ng
Reed Dickerson said that the legal drafter should use initial capital letters
only where required by good usage, as for proper nouns.
79
Other writers,
though, have advocated the (sparing) use of capitals. Piesse, for example,
suggests that the technique may help the careful reader.
80
Thus, if a party to
a document is a company, it can be referred to throughout as the Company,
leaving company without a capital for use if a company in general is meant.
The device of using a capital letter might possibly be helpful when (as in that
example) the descriptive word is likely to be used also in a different sense:
the capital letter warns the reader that for the purpose of the document the
word bears a particular meaning. A better practice, though, is to avoid the
misunderstanding by calling the party something altogether different, such
as the supplier.
In traditionally drafted documents, as we have seen, capitals are some-
times usedfor complete words, tobreakupblocks of text: commonexamples
are WHEREAS, TOGETHER WITH, PROVIDED THAT, ALL THAT, and
the like. However, overuse of capitals in whole words or passages hinders
uent readers.
81
This is because the shape of a whole word in capitals is less
distinctive than its counterpart in lower case.
82
There is no justication for
continuing the practice in modern documents, particularly as other devices
exist for breaking blocks of text into manageable chunks.
Inuence on interpretation
For readers unused to the convention, to dene a term and then to draw
attention to it by initial capital letters when it is used in the text may down-
grade other expressions that do not receive the same treatment. Conversely,
to use capital letters for terms that have not been dened tends to elevate
the terms to a status they do not merit. Consider this clause:
This Mortgage incorporates the National and Provincial Building Society
Mortgage Conditions 1983 Edition and the Rules and the Borrower (and the
Guarantor (if any)) have received copies of the said Mortgage Conditions and
the Rules.
79
Fundamentals of Legal Drafting, p. 189.
80
Elements of Drafting, p. 50.
81
National Consumer Council, Plain English for Lawyers (London, 1984), p. 25.
82
Martin Cutts and Chrissie Maher, Writing Plain English (Stockport: Plain English Cam-
paign, 1980), p. 21.
What t o Avoi d when Draf t i ng 163
In the building society mortgage from which this example was taken, the
only dened terms were the Borrower, the Guarantor, and the Society.
Neither Mortgage nor the Rules was dened. (The word mortgage also
occurred later, in the phrase by way of legal mortgage.) The indiscriminate
capitalisation produces a clause which at best is hard to read, and at worst
may prove difcult to interpret.
In short, excessive capitalisation creates a wholly articial atmosphere
in a document, without appreciably increasing the readers understanding.
Signicantly, modern parliamentary drafters rarely if ever assign capital
letters to dened words or phrases in statutes or regulations. Private legal
drafters could do well to follow their lead.
Provisos
Provisos have a long legislative history. For centuries in England, the term
provided or provided that was used to introduce substantive provisions in
legislation, as a contractionof the enacting formula it is provided [that]. This
use has long ceased, but the term provided or provided that has survived,
unique to legal writing. It has degenerated to a legal incantation . . . an all-
purpose conjunction, invented by lawyers but not known to or understood
by grammarians.
83
When properly used in modern legal drafting, provisos limit or qualify
what has gone before. For this purpose, no particular formula is needed. In
practice, however, provisos are typically introduced by formalistic phrases
such as provided that, or provided however that. No legal precision would be
lost by replacing these phrases with simple English words, like if or but or
however.
To illustrate, a will might say:
I give my property to my children provided that they marry.
The drafter could dispense with provided that and use if or when. Indeed,
it would be better to do so. As the will stands, it is unclear whether the
proviso introduces a condition precedent or a condition subsequent. That
is, it is unclear whether the gift is initially contingent, with marriage being
83
E. Driedger, The Composition of Legislation, 2nd edn (Ottawa: 1976), ch. ix and p. 96.
164 Modern Legal Draf t i ng
a condition precedent to vesting, or initially vested but subject to divesting
in the case of children who do not marry.
84
An alert drafter could have used
if to introduce a contingent gift; or could have used to be paid over when to
introduce a vested gift (to be paid over to them when they marry).
85
Provisos in practice
A true proviso, intended to qualify or limit what has gone before, has its
place in modern documents. In practice, however, the technique is often
abused. Rather than qualify or limit what has gone before, the self-styled
proviso in fact introduces information of equal force. It adds a parallel
provision, inserting material that should have been drafted as a stand-alone
clause. At best, this can cause difculty of comprehension, for the reader
is uncertain whether to assume that the proviso is intended to limit the
precedingcovenant (its proper function) or tointroduceaseparatecovenant.
At worst, it can lead to litigation.
86
Where the purpose is to introduce new
material, the words introducing the proviso provided that, or provided
however that should be struck out, and a new sentence begun.
A proviso can affect the burden of proof. A party wishing to bring itself
within the ambit of a genuine proviso bears the onus of proof.
87
For exam-
ple, a lease may require the tenant to repair damage to the premises, with
a proviso (that is, an exemption) for damage caused by reasonable wear
and tear. A landlord who wishes to enforce the repair obligation must prove
that the premises are in disrepair; but a tenant who wishes to take advan-
tage of the exemption then bears the onus of proving that the disrepair
is the result of reasonable wear and tear.
88
However, this assumes that the
proviso is a genuine one. If, despite its form as a proviso, the clause in
substance is a stand-alone provision which introduces new material, the
84
As in Re Cohn [1974] 3 All ER 928 (CA); Nicholls v Public Trustee (South Australia) (1945)
72 CLR 86.
85
Hume v Perpetual Trustees Executors and Agency Co. of Tasmania (1939) 62 CLR 242. See
F. V. Hawkins and E. C. Ryder, The Construction of Wills (London: Sweet &Maxwell, 1965),
pp. 303308; Barclays Bank Trust Co. Ltdv McDougall (2000) LawSocietys Gazette, 3August,
p. 39 (also reported at [2001] WTLR 23 (Rimer J)).
86
As in Hely v Sterling [1982] VR 246.
87
Vines v Djordjevitch (1955) 91 CLR 512 at 520; Minister for Immigration v Hughes (1999)
86 FCR 567.
88
Haskell v Marlow [1928] 2 KB 45 at 59; Brown v Davies [1958] 1 QB 117 at 127; Wicks
Farming Pty Ltd v Waraluck Mining Pty Ltd [1996] 1Qd R 99 at 103.
What t o Avoi d when Draf t i ng 165
court will treat it as that and there will be no occasion to shift the burden of
proof.
89
Provisos are frequently a product of the negotiation process. The docu-
ment is drafted by A, the lawyer for one side in the transaction. The other
sides lawyer, B, needs to make a substantive amendment but does not want
to renumber all the existing clauses. So B inserts a proviso, which by its
nature is tacked onto an existing clause. A feels constrained by professional
comity to leave the amendment as a proviso. Hence the text slips in as a
proviso, when it should be put somewhere else.
To illustrate the points just discussed, consider the following clause from
a lease of property in an earthquake zone:
The tenant must repaint the premises provided that if there has been an earth-
quake the tenant must repair any structural damage.
Here the drafter has usedthe technique of proviso, not to qualify what has
gone before, but to introduce an entirely new and stand-alone obligation.
It would be better to delete the proviso and divide the clause into two
independent parts:
1. The tenant must repaint the premises.
2. If there is an earthquake, the tenant must repair any structural damage.
Again, consider the following provision:
All xtures installed during the term of the lease by the tenant become the
property of the landlord upon the expiry of the term PROVIDED THAT the
tenant may remove its xtures at the end of the term.
90
The meaning, or the purpose, of this clause is almost impossible to dis-
cern. The rst half (up to the proviso) seems merely to reect the common
law assumption that xtures which a tenant afxes to the property are the
landlords property unless and until the tenant removes them,
91
and that
a tenant who wishes to remove them must generally do so before the lease
89
Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 2745; Commissioner of Stamp
Duties v Atwill [1973] AC 558 at 561; Datt v Law Society of New South Wales (1981) 35 ALR
523 at 534.
90
Adapted from Dick, Legal Drafting, p. 104.
91
Bain v Brand (1876) 1 App Cas 762 at 770 (Lord Cairns).
166 Modern Legal Draf t i ng
expires, otherwise the xtures remain the landlords property.
92
The second
half (the proviso) seems to give the tenant an unfettered right to remove x-
tures at the end of the term: but this also merely reects the common law
right of tenants to remove their xtures at or before the end of the lease.
93
Probably, the drafter intended the proviso despite being cast as a proviso
to be the main head of tenants right, and the opening words to limit the
time in which the tenant can exercise that right. If so, it would have been
much better to avoid the use of a proviso altogether, and reverse the order
of provisions, thus:
1. The tenant may remove its xtures at the end of the term.
2. Any xtures not so removed remain the landlords property.
Conclusion
This chapter has highlighted some of the practices which modern drafters
should shun. All the practices considered in the preceding pages have been
developed and sustained over many generations, even centuries. They are
stocked in plentiful supply in the arsenal of traditional legal drafters. But
theyarepractices whichnon-lawyers nddisconcerting, andwhichtherefore
hinder comprehension. They can be discarded without threat to precision
or legal effect.
92
It is otherwise where the tenant takes a renewed lease of the premises at the end of the
current lease. In such a case, the tenant retains the right to remove until the expiry of
the renewed lease: New Zealand Government Property Corporation v HM & S Ltd [1982]
QB 1145.
93
Bain v Brand (1876) 1 App Cas 762.
Chapter Si x
HOW TO DRAFT MODERN
DOCUMENTS
In the previous chapter we considered some of the techniques to avoid when
drafting modern legal documents. The emphasis was on the negative what
not to do. Now we turn to the positive what to do. That is, we consider
some of the techniques to be adopted when drafting legal documents in the
modern style.
Modern, standard English
We begin with a proposition that underlies all we have said so far in this
book: legal documents should be written in modern, standard English
that is, in standard English as currently used and understood.
1
Identifying
modern, standard English is not difcult. It can be found in articles in the
more serious newspapers, inpopular andacademic books onmany subjects,
and in reports of governments and public authorities. Its hallmark is a style
that is direct, informative and readable.
For many traditional lawyers, the move to modern, standard English is
difcult. It forces themto rethink, and rethinking takes time. To begin with,
they must switch from stilted, archaic constructions to modern, idiomatic
equivalents. For example, instead of such or the said, they must write the;
1
National Consumer Council, Plain Words for Consumers (London: 1984), p. 47; David
Mellinkoff, Legal Writing: Sense and Nonsense (St Paul, Minnesota: West Publishing Co.,
1982), p. 44.
167
168 Modern Legal Draf t i ng
instead of in the event that, they must write if; instead of notwithstanding the
fact that, they must write despite.
2
But more is requiredthansimply a process
of translation. While merely updating terminology will help, a well-drawn
document goes further. It takes into account matters of structure, layout,
word order, and design. It also takes into account the issues of substantive
law that will almost certainly arise.
To illustrate some of the difculties inherent in this process, consider the
following clause from a traditionally drafted sublease:
Not to afx or exhibit or permit or suffer to be afxed or exhibited to or upon
the external walls windows or other external parts of the demisedpremises any
name ag placard sign poster signboard nameplate sunblind (for advertising
purposes only) or other advertisement whatsoever without the prior consent
in writing of the Landlord.
Before altering the wording, the modern drafter asks a number of ques-
tions. These include:
r
What is the purpose of the clause?
r
How can that purpose best be expressed?
r
Is there a difference between doing something and permitting something?
r
Is there a difference between suffering and permitting?
r
What is the most effective word order?
r
Can I be bold, or should I err on the side of caution?
The purpose of the clause seems to be to prevent advertising on the
outside of the leased property. That can be expressed in direct, modern
English, thus:
Not toput any advertisement onthe outside of the property or inthe windows,
except with the Landlords written consent.
The original usedthe phrase not topermit or suffer tobe afxed. Usually,
permit andsuffer are synonyms. Inmost contexts permit alone or suffer
2
Despite means the same as notwithstanding the fact that: Attorney-General of the Common-
wealth v Oates (1999) 198 CLR 162; Eddy Lau Constructions Pty Ltd v Transdevelopment
Enterprise Pty Ltd [2004] NSWSC 754.
How t o Draf t Modern Document s 169
alone would sufce.
3
And conceptually, of course, there is a distinction
between doing something directly and allowing it to be done by someone
else. In legal documents, however, the distinction (though often found) is
frequently unimportant. Persons subject to a direct prohibition will usually
be inbreachif they allowanother persontodothe prohibitedact, inthe sense
of directly or indirectly sanctioning it to be done.
4
In any case, disputes over
possible differences between permit and suffer can be circumvented by using
allow, for allowis at least as wide as permit, if not wider.
5
Andif (despite these
arguments) the drafter feels it necessary to preserve the distinction between
direct and indirect breach, this can be achieved by a paragraph within the
interpretation clause, such as:
A prohibition on an activity includes a prohibition on allowing that activity.
This at least removes the need to repeat the distinction in each substantive
provision.
As for the most effective word order: if an act is to be prohibited, but
with qualications, it is best to begin with the prohibition and then to
add the qualications afterwards. Legal documents often reverse this order,
putting the qualications rst. But to start with a qualication Except
with the Landlords prior written consent tends to obscure the clauses
main purpose. Putting the prohibition rst helps the reader assimilate the
message.
To repeat these processes for each clause in a long lease might seem
both time-consuming and difcult. At rst it may be. But once the drafter
becomes attuned to a new way of thinking, the process becomes much
easier. Nor need the process be undertaken unaided. The lawyer drafting in
modern, standard English may still use precedents as an aide-memoire not
following them willy-nilly, but adapting them to the requirements of the
particular transaction.
3
However, in criminal law, there is said to be a difference in some contexts between permit-
ting an offence to occur and suffering an offence to occur: R v Jasper (2003) 139 A Crim
R 329 (NSW Court of Criminal Appeal).
4
Hardcastle v Bielby [1892] 1 QB 709; Massey v Morris [1894] 1 QB 412; Ferrier v Wilson
(1906) 4 CLR 785.
5
See Barton v Reed [1932] 1 Ch 362 at 375 (Luxmoore J); De Kupyer v Crafter [1942] SASR
238 at 2434.
170 Modern Legal Draf t i ng
Document structure
The contents of a legal document should be ordered logically, to enable
the document to be read and used quickly and effectively. As we explain
below, by logically we mean logically from the readers perspective. Each
clause and paragraph should be presented in a way that is both sensible and
comprehensible to the reader. Among other things, this requires that more
important clauses should come before less important clauses. To illustrate,
the general pattern of a contract might be:
r
heading
r
date
r
parties
r
denitions
r
the heart of the deal
r
things associated with the heart of the deal
r
general housekeeping, such as
duration
assignment
effect of death or dissolution
r
what happens if things go wrong, such as
bankruptcy or insolvency
termination for breach
liquidated damages
dispute resolution
r
standard provisions (boilerplate), such as
effect of extraneous events (force majeure)
service of notices
governing law.
Of course, these divisions are not hard and fast. For example, the deni-
tions might be better located towards the end of the document (see below).
What is crucial, though, is to identify the heart of the deal and things asso-
ciated with the heart of the deal, and to place them up front. The clause
containing the heart of the deal then acts as a kind of general purpose or
object clause, governing the rest of the document. It should be ahead of and
How t o Draf t Modern Document s 171
separate from matters that are relevant to the transaction but are not at its
heart.
When considering whether a document ows logically, the aim is an
order that is logical for the reader, not necessarily logical for the drafter.
The test is: what is comfortable for the client? It is not: what is familiar to
the lawyer? Traditional documents are cast in a framework familiar to the
lawyer. Yet legal efcacy does not require the lawyers framework. There is no
legal impediment to presenting a document in a way that reects the clients
thought processes about the deal. The drafter should try to anticipate those
thought processes and build the document around them.
With the reader in mind, as a general rule each main clause should be
limited to a single core concept. Combining two or more core concepts
in a single main clause adds unnecessary complexity. For example, leases
traditionally combined the demise (that is, the formal grant of the lease)
and the reddendum (the obligation to pay rent), but the client would better
understand the transaction if the grant of the lease and the rent obligations
were in separate clauses. Similarly, it is helpful to separate concepts such as
dispute resolution from notices relating to breach.
Examples
To illustrate issues of structure, consider a deed creating a partnership. The
heart of the deal is the establishment of the partnership itself. Things asso-
ciated with the heart of the deal are the nature of the business, the location
of the activity, and the name of the rm. In a short document creating a
straightforward relationship, the heart of the deal and things associated with
it can be run together in one clause, thus:
The partners will carry onbusiness inpartnershipas solicitors under the name
Castle & Co, at 113 High Street, Hurstpierpoint, West Sussex, beginning on
1 January 2006 and continuing until brought to an end in accordance with
this deed.
General, but essential, housekeeping matters should follow straight after-
wards like sharing prots or losses, providing capital, and the accounting
year. Less crucial (but still important) matters might appear next keeping
bank accounts, who cansigncheques, andwhat drawings canbe made. Boil-
erplate comes last, for it may never have to be referred to if the agreement
is performed in accordance with its terms. With a contract structure of this
172 Modern Legal Draf t i ng
kind, the parties can rapidly see what they are trying to achieve and how
they are expected to achieve it.
Other types of document call for different provisions, but should be
structured on the same principles. For example, a lease might take this
form:
r
the grant of the lease (the heart of the deal)
r
rent and rent review (things associated with the heart of the deal)
r
tenants covenants
r
landlords covenants
r
general housekeeping (for example, relating to services)
r
early ending (for example, on damage or destruction)
r
forfeiture for breach
r
boilerplate, such as
service of notices
resolution of disputes
interest on late payments.
Wills, too, can be structured in a way that regulates administration and
distribution in a natural sequence. The structure could be:
r
revocation of earlier wills
r
appointment of executors
r
gifts of particular items
r
gifts of money
r
distribution of residue
r
powers of executors
r
charging clause.
Layout and design
The use of modern, standard English and a logical structure are comple-
mented by user-friendly layout and design. As long ago as 1978, Alan Siegel
said:
Just as important as clear language is careful layout and design. If a document
looks terrifying it does not matter how easy the words are: they will never
be read. Good design sets the tone for the document. It communicates the
How t o Draf t Modern Document s 173
documents intent as much as words do. It also makes the document more
useful, by guiding the readers eye tothe informationhe or she wants toknow.
6
Layout and design are not merely cosmetic. They improve understanding
by helping readers nd their way around the document, aiding assimilation
of the contents. They may also provide an incidental benet for the drafter:
readers presented with a document which looks good, reads logically, and
encourages them to move forward, are less likely to want to amend the
document than are readers disgruntled with the documents presentation.
There are many ways to improve the layout and design of traditional legal
documents. Some are no more than common sense; others are the result
of research into document design. But all help improve the accessibility of
legal documents. Here are some suggestions:
White space
Use plenty of white space. This presents readers with an uncluttered page,
encouraging progress through the document. In particular:
r
Break up slabs of text.
r
Use generous margins all round, including at the top and bottom of the
page. In particular, have a generous margin on the left, to allow for nota-
tions at the draft stage.
r
Double-space all text (or at least use 1.5 spacing). Single spacing is too
crowded; it also makes it harder to mark amendments on drafts.
r
Use generous spacing between clauses.
Headings
Useplentyof headings. Theyareuseful signposts for thereader. Inparticular:
r
Use a bold central heading at the beginning of the document to identify
its nature (for example, Mortgage or Transfer), followed by bold head-
ings (lower case and ush left) to introduce the various divisions of the
document (see Panel 9, p. 174).
r
Give each main clause a heading (bold, lower case). If possible, also give
each subsidiary clause a heading (but in light italics, to distinguish from
main clause headings).
6
Conference of Experts in Clear Legal Drafting, National Center for Administrative Justice,
Washington DC, 2 June 1978 (reproduced in Reed Dickerson, Materials on Legal Drafting
(St Paul, Minnesota: West Publishing Co., 1981), p. 294).
174 Modern Legal Draf t i ng
DISTRIBUTION AGREEMENT
Date 2006
Parties
A.
B. Jack Smith Limited (company number 1792392) whose registered office
is at 96 High Street, Bockhampton, Dorset (the distributor).
1. Background
(1) The manufacturer makes widgets and other products, and in relation to
widgets has registered a patent and maintains all other intellectual property
rights.
(2) The distributor is a distributor of goods from its principal base in Southampton.
(3) The parties have agreed that the distributor is to have the right to distribute and
sell widgets throughout Hampshire, Dorset and the Isle of Wight.
John Jones & Company Limited (company number 689534-7) whose registered
office is at 3 Acacia Avenue, Anytown, Shropshire (the manufacturer).
Panel 9 Document layout
r
Ensure that headings are not orphaned at the bottom of a page, isolated
from the words to which they relate.
Navigation and ease of reading
r
If possible, use signposting techniques suchas running headings (headers)
on each page, lists of contents and indexes. These techniques are now
beginning to appear in legislation.
7
7
For a study of their benets in legislative design, see Centre for Plain Legal Language,
Discussion Paper: Review and Redesign of NSW Legislation (1994). For applications, see
How t o Draf t Modern Document s 175
r
Indent subsidiary paragraphs.
8
Use indents consistently, and ensure that
all text within an indented passage is kept to the same indentation.
r
Use a serif typeface. Studies generally show that a font with serifs is
more readable than one without (sanserif).
9
For contrast, use sanserif for
headings.
10
r
Use a generous type size. The literature on typography and design agrees
that a type size of between 9 and 12 point is the most legible for general
reading purposes.
11
While it is true that font sizes, of themselves, play
no part in legal interpretation,
12
judges have condemned the use of too-
small type sizes in legal documents.
13
And although a court is unlikely to
absolve a contracting party from liability purely on the ground that the
type was so small that it was practically illegible,
14
there are cases where
judges havetakensmall font sizeintoaccount inholdingexemptionclauses
unenforceable.
15
Retirement Villages Act 1999 (NSW); UK Revenue and Customs Tax Law Rewrite, Report
and Plans, 2005/06, Appendix B, at <www.hmrc.gov.uk/rewrite>.
8
In Re Gulbenkians Settlement [1970] AC 508 at 526, Lord Donovan said that he had never
understoodwhy some conveyancers regardedit as beneaththeir dignity touse paragraphing
techniques to make their meaning plain: had that been done on the facts of the case, much
trouble and expense would have been avoided.
9
C. Wheildon, Communicating: or Just Making PrettyShapes (1986; astudyfor theNewspaper
Advertising Bureauof Australia Ltd), pp. 16, 17; Centre for PlainLegal Language, Discussion
Paper, p. 14. However, some studies are less adamant about the advantages of serif over
sanserif: for example, James Hartley, Designing Instructional Text, 3rd edn (London: Kogan
Page, 1994), ch. 4. The apparent preference for serif may be simply due to familiarity, serif
being the norm in newspapers.
10
A technique recommended in the study by the Centre for Plain Legal Language, Discussion
Paper, and now adopted in New South Wales legislation.
11
Ibid., pp. 1617; Hartley, Designing Instructional Text, pp. 2324; Document DesignProject,
Guidelines for Document Designers (American Institutes for Research, 1981), pp. 7778.
12
Yorkshire Insurance Co. Ltd v Campbell [1917] AC 218 at 222.
13
For example, Goldsbrough v Ford Credit Aust Ltd (1989) ASC 55946 at 58,584; George
T. Collings (Aust) Pty Ltd v H. F. Stevenson (1991) ASC 56051.
14
Koskas v Standard Marine Insurance Co. Ltd (1927) 27 Ll L Rep 59 at 62, where Scrutton LJ
said: I am rather afraid of the doctrine that you can get out of clauses by saying that they
are difcult to read. There may be extreme cases. I have in mind the bill of a well-known
shipping line printed on red paper which was calculated to produce blindness in anyone
reading it. I am not saying that in no case can you get out of it on the point of illegibility,
but this case does not appear to me to be a case in which that doctrine should be applied.
See also Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535.
15
Examples are the South African case of Fourie v Hansen [2000] JOL 5993 (W), and the
Australian case of Australian Competition and Consumer Commission v Henry Kaye [2004]
FCA1363. And see Lord Dennings colourful statement inJ. Spurling Ltd v Bradshaw[1956]
176 Modern Legal Draf t i ng
r
Dont justify the right margin. Although readability seems generally unaf-
fected by whether the right margin is justied or unjustied (ragged), an
unjustied right margin gives a document a more relaxed feel.
16
r
Use a coversheet for a document of any length (say, more than ve or six
pages). Like the cover of a book, it can show the nature of the document
at a glance. For a document that will be folded lengthwise, a backsheet
can also be useful. But dont put too much information on the coversheet
or backsheet, lest it be used to qualify the content of the body of the
document.
17
Numbering systems
Legal documents use a variety of numbering systems. Some examples are
shown in Table 3. A variant is to use bullet points to enumerate items in a
list.
Table 3 Numbering systems
Arabic/Roman Decimal Partial combination
1. 1. 1.
2. 2. 2.
3(1) 3.1 3.1
(2) 3.2 3.2
(3)(a) 3.3.1 3.3(a)
(b) 3.3.2 (b)
(c)(i) 3.3.3.1 (c)(i)
(ii) 3.3.3.2 (ii)
(iii)(A) 3.3.3.3.1 (iii)(A)
(B) 3.3.3.3.2 (B)
(C) 3.3.3.3.3 (C)
1 WLR 461 at 468: Some clauses which I have seen would need to be printed in red ink on
the face of the document with a red hand pointing to it before the notice could be held to be
sufcient.
16
Hartley, Designing Instructional Text, p. 37; Document Design Project, Guidelines for Doc-
ument Designers, pp. 37, 38. Wheildon, Communicating: or Just Making Pretty Shapes,
p. 35, concludes that justied text promotes readability more than unjustied. This book
is justied but that is Cambridge University Presss house style, over which we have no
control.
17
For a case where the judge took account of the contents of a backsheet, see Meadeld
Properties Ltd v Secretary of State for the Environment [1995] 1 EGLR 39 at 41 (Warner J).
How t o Draf t Modern Document s 177
The choice of numbering system is a matter of personal preference. No
one systemis best, althoughthe moderntrendis towards the decimal system.
Whichever system is chosen, however, three matters must be kept in mind.
First, numbering systems become cumbersome when they descend to more
than three levels. Drafters who nd themselves subdividing further than this
should reconsider the structure of their document. Second, consistency in
numbering is crucial. Having chosen a system, the drafter should keep to
it remorselessly. Third, the meaning should meticulously follow the layout
and logic of the various levels, with main points and subsidiary points
scrupulously differentiated.
To illustrate the third point, consider the layout of the following lease
clause. Notice how each paragraph is a stand-alone sentence:
11 If during the term of the lease the premises are destroyed or damaged,
then
(a) Either the lessor or the lessee may terminate the lease without com-
pensation to the other.
(b) The termination will not affect the rights of either party in relation
to earlier matters.
(c) On the happening of the damage or destruction, the rent abates pro-
portionately.
(d) If the lessor wants to demolish or rebuild to the extent that (in the
lessors opinion) the lessees right of quiet enjoyment is appreciably
diminished, the lessor can give six months notice to terminate the
lease.
Canthe lessor require the tenant tovacate under clause 11(d) eventhough
the premises have not been destroyed or damaged? This question of con-
struction came before an Australian court, which held no.
18
The lessors
power under clause 11(d) was to be read in the context of the opening
words of clause 11. That is, the power existed only where the premises were
destroyed or damaged. Para (d) was not a stand-alone right to require the
tenant to vacate. Presumably, the result would have been different had the
18
Spathis v Hanave Investment Co. Pty Ltd (2001) NSW ConvR 55983.
178 Modern Legal Draf t i ng
drafter made para (d) an entirely independent clause, divorced from
the opening words of clause 11.
Lists
Uses of lists
The modern reader expects legal material to be served up in an easily-
digestible form. So the drafter uses lists to break up the elements of the
sentence to make the meaning plainer. But fragmentation of sentences (or
shredding, as it is sometimes called) can be overdone. In fact, there is a
danger of over-reacting to the undesirable block text characteristic of legal
writing. Excessive listing can make sentences even harder to understand
because their constituent parts are over-shredded.
The lead-in
The words of each listed item must ow logically and grammatically from
the lead-in. Often the drafter observes this principle for the rst one or two
items listed, but then forgets it for later items. The reader may be able to
glean the sense, but the appearance is sloppy and ungainly.
The lead-inwords shouldbe chosenwithcare, bothfor comprehensibility
and for maximum effect. Repetition of the same word or phrase at the
beginning of each item is a good indication that the word or phrase could
be transferred to the lead-in. But this is by no means an absolute rule. For
example, it may be better to say:
The purpose of this action is
(a) to inform . . .
(b) to create . . .
(c) to allow . . .
rather than
The purpose of this action is to
(a) inform . . .
(b) create . . .
(c) allow . . .
How t o Draf t Modern Document s 179
Punctuation after the lead-in
Good practice is to:
r
use an em dash immediately after the lead-in if the listed words ow
immediately and naturally as part of the same sentence, and
r
use a colon if the list is the product of the lead-in.
So for instance:
The deputy may exercise all the powers of the principal while
(a) there is a vacancy in the ofce of the principal . . .
but
The powers and duties of the principal are these:
(a) to notify the board . . .
The distinction is not crucial, however. And sentences with a succession
of dashes or colons are ungainly, regardless of whether they are presented as
lists.
Punctuation within lists
Punctuation within lists is not easy. There is no universal practice or right
way. In England it is customary (and seemingly entirely natural) to treat
the lead-in and the list as part of the same sentence. Hence, each listed item
starts with a lower case letter (unless of course the rst word happens to be a
proper noun), and there is just one full stop at the end of the list (assuming
that the sentence does not carry on after the end of the list).
In constructing lists, two main problems arise. The rst is what to do at
the end of each listed item. The second is what to do when another sentence
begins in the middle of a listed item.
As to the rst problem, three punctuation options exist for the end of
each item in a list:
(1) put nothing
(2) put something, depending on the circumstances, or
(3) have rules for putting the same thing in the same circumstances.
180 Modern Legal Draf t i ng
Sometimes it is sufcient to put a comma at the end of each part (para-
graph) of the list. But if commas are used to separate items within subparts
of the list, then a semi-colon will be preferable at the end of each paragraph.
This creates a useful distinction. Thus
(b) apples, pears, bananas and beans;
(c) root vegetables; and
(d) other perishable goods.
As to the second problem, where a new sentence begins in the middle of
a listed item, logic often goes out of the window. Private drafters sometimes
use a full stop and start a new sentence within the listed item, but they
end that sentence with a semi-colon because the list then carries on to the
next item. This makes no grammatical sense. And of course if the drafters
general policy is no punctuation in lists, that policy must be abandoned.
The following possibilities present themselves:
r
recast the list so that the new sentence becomes a separate item, or is
eliminated in some other way;
r
reshape the list into a different type, where each item becomes a stand-
alone topic beginning with a newsentence, allowing newsentences within
it; or
r
put a comma, semi-colon or colon at the end of each item, but otherwise
follow the same principles (e.g. each item begins as a follow-on from the
lead-in, with a lower case rst letter).
Conjunctions
Where items (paragraphs) in a list are to be read conjunctively or dis-
junctively, the convention is to insert the appropriate linking word (and
or or) between only the second-last and last paragraphs in the list.
Lawyers know that the same word is then to be implied between ear-
lier items in the list. However, in more recent times some parliamen-
tary drafting ofces have inserted the linking word after every item in a
list, unless there is good reason not to. There seem to be two justica-
tions for this. One is that if a conjunction appears only after the penul-
timate paragraph in the list, readers might be prompted to apply the
linking word only to the last two paragraphs and be puzzled about what
is to happen with the earlier paragraphs in the list. The other is that
How t o Draf t Modern Document s 181
repeating and or or after each paragraph avoids the difculty that may
otherwise arise if a penultimate paragraph is revoked and the only and or
or disappears.
This newpractice is not followed by parliamentary drafters inall jurisdic-
tions. Nor does it commend itself to the general writer of standard English.
Its use can make the text appear rather fussy. The revocation point (which
surely arises only rarely) can be overcome by carefully-drafted revocation
provisions. In short, lists do not require every item to conclude with a con-
junction, and the device would be better abandoned. The better practice is
to draft the lead-in so as to avoid the need for conjunctions at all. Careful
drafting canmake it clear that the items inthe list are tobe readconjunctively
or disjunctively (as the case may be), or a combination of the two. Here is an
example:
The order may prescribe all or any of the following matters:
(a) the rate of the levy
(b) the persons liable to pay the levy
(c) penalties and interest for the late payment of levies
(d) the taking of legal proceedings to recover any levy.
Short sense-bites
In Chapter 5 we discussed the excessive wordiness and the unduly long
sense-bites that characterise traditional legal drafting. These peculiarities
modern drafters take care to avoid.
Modern drafters are often exhorted to write short sentences. But a better
exhortation would be: write short sense-bites. Blind adherence to a pol-
icy of short sentences is not always appropriate. For example, sentences
that list a series of obligations or events are inevitably long. Consider the
tenants covenants in a lease: they are usually structured in the form of a
single sentence, introduced by such words as The tenant covenants with the
landlord: . . . Each covenant then appears as a separate sub-sentence, thus:
to pay the rent, to pay outgoings, and the like. To insist that each covenant
be a separate sentence beginning The tenant covenants with the landlord
to . . . would be irritating and silly. It is much better to use sub-paragraphs
182 Modern Legal Draf t i ng
and indentation to reduce each covenant to manageable sense-bites, so that
the reader can quickly grasp the meaning.
Example
To illustrate the advantages of short sense-bites, here are two versions of an
easement to drain water, taken fromthe NewSouth Wales Conveyancing Act
1919. (For similar examples, see p. 100.) The rst version is the traditionally
drafted form of easement:
Full and free right for the body in whose favour this easement is created, and
every person authorised by it, from time to time and at all times to drain
water (whether rain, storm, spring, soakage, or seepage water) in any quan-
tities across and through the land herein indicated as the servient tenement,
together with the right to use, for the purposes of the easement, any line of
pipes already laid within the servient tenement for the purpose of draining
water or any pipe or pipes in replacement or in substitution therefor and
where no such line of pipes exists, to lay, place and maintain a line of pipes of
sufcient internal diameter beneath or upon the surface of the servient tene-
ment and together with the right for the body in whose favour this easement
is created and every person authorised by it, with any tools, implements, or
machinery, necessary for the purpose, to enter upon the servient tenement
and to remainthere for any reasonable time for the purpose of laying, inspect-
ing, cleansing, repairing, maintaining, or renewing such pipe line or any part
thereof and for any of the aforesaid purposes to open the soil of the servient
tenement to such extent as may be necessary provided that the body in whose
favour this easement is created and the persons authorised by it will take all
reasonable precautions to ensure as little disturbance as possible to the surface
of the servient tenement and will restore that surface as nearly as practicable
to its original condition.
This is one single sentence of 256 words. Contrast the following version
of the same easement, incorporated into the Act in 1995. As a matter of
strict grammar, each clause is a single sentence. But each is broken down
into smaller, more digestible, sense-bites:
1. The body having the benet of this easement may:
(a) drain water from any natural source through each lot burdened, but
only within the site of this easement, and
How t o Draf t Modern Document s 183
(b) do anything reasonably necessary for that purpose, including:
r
entering the lot burdened, and
r
taking anything on to the lot burdened, and
r
using any existing line of pipes, and
r
carrying out work, suchas constructing, placing, repairing or main-
taining pipes, channels, ditches and equipment.
2. In exercising those powers, the body having the benet of this easement
must:
(a) ensure all work is done properly, and
(b) cause as little inconvenience as is practicable to the owner and any
occupier of the lot burdened, and
(c) cause as little damage as is practicable to the lot burdened and any
improvement on it, and
(d) restore the lot burdened as nearly as is practicable to its former con-
dition, and
(e) make good any collateral damage.
Punctuation
Traditional legal drafting uses punctuation sparingly. This has been the
practice from the earliest times. As late as 1860, Davidson wrote in the
introductory notes to his highly regarded Precedents in Conveyancing:
The writing of a legal instrument is without punctuation; such stops and
marks of parenthesis must be supplied by the reader as will give effect to the
whole. Marks of parenthesis are, indeed, usually inserted, but it seems that
they are to be regarded, in the construction of the deed, only when they are
consonant with the sense, and required by the context. The Precedents in
this and other collections are pointed by the printers, according to the usual
practice; but no attention is to be paid to the punctuation.
19
This approach probably reects a belief among lawyers that early statutes
were largely unpunctuated when they left the drafter, and that any punc-
tuation later added was done at the behest of the printer, not the author.
19
3rd edn (London: William Maxwell, 1860), p. 30 (citations omitted).
184 Modern Legal Draf t i ng
This belief David Mellinkoff has convincingly shown to be misconceived.
20
It did lead, however, to the attitude, once prevalent judicially, that punctu-
ation played little or no part in construing legal documents. For example,
in Sandford v Raikes, Sir William Grant MR said that the sense of legal
writing should be gathered from the words of the document and their
context, rather than from punctuation.
21
Other judges have said the same
thing.
22
But that is no longer the prevalent view. The modern style of legal draft-
ing uses punctuation for the same reason as any other careful prose uses
punctuation to give guidance about meaning. As Lord Shaw pointed out
in Houston v Burns, punctuation is part of the composition of language, and
is sometimes quite signicant. He sawno reason to deprive legal documents
of the signicance attached to punctuation in other writings.
23
So, for example, commas can be used in the same way as they are in
ordinary prose as an aid to understanding. Indeed, they should be used
where necessary, to clarify meaning. For example, in an Australian case, a
workers insurance policy described the employers business as Fuel Car-
rying and Repairing. Did the policy cover an employee who was injured
when driving the employers vehicle carrying bricks? The New South Wales
Court of Appeal held that it did, overruling the trial judge. The court
interpreted the policy as if it read either Fuel, Carrying, and Repairing
or Fuel Carrying, and Repairing (the rst alternative being sufcient to
cover the facts). The insertion of a comma would have avoided the need for
litigation.
24
Again, in an Ohio case a statute allowed a prosecutor to introduce the
evaluation report or present other evidence at the hearing in accordance
with the Rules of Evidence. Did the introduction of an evaluation report
have to comply with the rules of evidence? A comma between report
and or would have given one meaning; but a comma between hearing
and in would have given the opposite meaning. In the end, the court
20
The Language of the Law, p. 152. See also V. Crabbe, Punctuation in Legislation (1988) 9
Statute Law Review, p. 87; R. Wydick, Should Lawyers Punctuate? (1990) 1 Scribes Journal
of Legal Writing, p. 7.
21
(1816) 1 Mer 646 at 651; 35 ER 808 at 810.
22
For example, Lord Kenyon CJ in Doe d Willis v Martin (1790) 4 TR 39 at 65, 66; 100 ER 882
at 897.
23
Houston v Burns [1918] AC 337 at 348, HL.
24
Manufacturers Mutual Insurance Ltd v Withers (1988) 5 ANZ Insurance Cases 60853.
How t o Draf t Modern Document s 185
construed the provision as if there were a comma between report and or,
applying the somewhat arbitrary rule that a modifying phrase applies only
to the words or phrase that immediately precede it (the last antecedent
principle). Here too the presence of a comma in the legislation would have
prevented litigation.
25
Yet again, under a Caribbean statute a person com-
mitted an offence if he [or she] in any public place conducts himself in a
disorderly manner, or conducts himself in such a noisy manner as to disturb
the neighbourhood. The Court of Appeal of the Eastern Caribbean States
held that the presence of the comma showed a legislative intent to create two
offences, not one. The second offence (after the comma) required a nding
of disturbing the neighbourhood, while the rst offence (before the comma)
did not.
26
Other forms of punctuation can also be used in legal documents to
improve comprehension. Thus, brackets can be used to mark off paren-
thetical material, in the same way as in normal prose. This technique is used
widely in statutes,
27
and is equally applicable to private legal documents.
The only disadvantage practical, not legal is that the reader may skip the
material in parenthesis, considering it less signicant than the surrounding
material.
28
Inverted commas canbe used inthe same way as innormal prose. Indeed,
they are now common in denition clauses, often in combination with
brackets. For example, a lease might set out the tenants details, followed by
the parenthetical phrase: (the tenant).
29
For the possessive, modern legal usage follows ordinary English usage.
Common examples are: landlords xtures, surveyors fees, tenants covenants,
claimants case and executors oath. On the other hand, if it seems more
idiomatic in the context to say the xtures of the landlord or the fees of
the surveyor, then that construction is adopted.
The dash is also now common in legal documents, though its usage
differs. Parliamentary drafters typically use a dash (usually an em dash,
25
State of Ohio v Bowen (Court of Appeals, First Appellate District of Ohio, 28 July 2000).
26
Douglas (Clayton) v The Police (1992) 43 WIR 175.
27
For example, Retirement Villages Act 1999 (NSW).
28
As pointed out by Lord Lloyd of Berwick in Investors Compensation Scheme Ltd v West
Bromwich Building Society [1998] 1 WLR 896 at 9023, 904.
29
Many modern drafters would now omit the inverted commas, so that the parenthetical
phrase would read simply: (the tenant).
186 Modern Legal Draf t i ng
but sometimes an en dash) after a lead-in or introduction, to indicate that
material is to follow, thus:
In this Part of this Act
Private drafters rarely use a dash for this purpose. They prefer the
traditional but curious hybrid mark combining both colon and dash,
thus:
In this Lease, unless the context otherwise requires, the following expressions
have the following meanings:
The trend is towards replacing this hybrid mark with a simple colon. This
conforms with current practice in ordinary narrative, where the colon has
acquired the function of pointing to information that is to follow.
30
Normal punctuation techniques, then, apply as much to legal draft-
ing as they do to normal prose. Properly employed, they are useful aids
to comprehension. However, their usefulness is subject to one overriding
qualication: judges retain the right to ignore punctuation if they think that
by doing so the parties meaning is better deduced. For example, several
leading Australian judges have said that a court is entitled to take notice
of commas but is not to be controlled by them if the context requires
otherwise.
31
In a Victorian (Australian) case, a judge disregarded a comma
in a statute where it served no apparent purpose and the clause could be
sensibly interpretedby ignoring it.
32
Indeed, courts not only disregardpunc-
tuation where they consider it appropriate to do so, but they also correct
punctuation if they consider that the change will better reect the drafters
perceived intention. In one case, the Australian Full Federal Court held that
a semicolon between two clauses (which grammatically suggested that the
clauses were independent clauses) should be read as if it were a comma.
33
These and similar cases bear out the truth of Sir Robert Megarrys statement
about punctuation generally:
30
Fowlers Modern English Usage, revised 3rd edn, ed. R. W. Burcheld (Oxford: Clarendon
Press, 1998), p. 159; Pam Peters, The Cambridge Guide to English Usage (Cambridge: Cam-
bridge University Press, 2004). Printers refer to the combination of colon and dash as a full
set.
31
Committee of Direction of Fruit Marketing v Collins (1925) 36 CLR 410 at 421 (Isaacs J);
Chew v The Queen (1992) 173 CLR 626 at 639 (Dawson J).
32
Transport Accident Commission v Hipwell [1995] 1 VR 582 at 590.
33
Minister for Immigration and Multicultural Affairs v Savvin (2000) 61 ALD 107.
How t o Draf t Modern Document s 187
One must remember that punctuation is normally an aid, and no more than
an aid, towards revealing the meaning of the phrases used, and the sense that
they are to convey when put in their setting. Punctuation is the servant and
not the master of substance and meaning.
34
Perhaps for fear of judicial caprice, there survives a style of modern legal
writing which rejects almost all punctuation, leaving much of the sense
of a document to be gleaned from layout, particularly from spacing and
indentation. This style of drafting offends the principle that legal documents
should follow the rules of English composition.
35
Even so, it has received
some qualiedprofessional recognition.
36
There is, however, nological need
to deprive legal writing of the benets of punctuation.
Denitions
InChapter 5we discussedaspects of the unsatisfactory use of denitions. But
of course denitions have a proper role to play inlegal documents. The main
one is to give a precise meaning to words and phrases used in the document.
Used this way, denitions provide a shorthand method of referring to a
particular word or phrase that crops up repeatedly in the document. This
can help reduce the length of a document. For example, here is a clause from
a traditionally worded mortgage:
The mortgagee, for himself, his heirs, executors, administrators and assigns,
covenants with the mortgagor, his heirs, executors, administrators and assigns,
that if the mortgagor, his heirs, executors, administrators and assigns, pays on
time all instalments of interest and observes all the covenants to be performed
by the mortgagor, his heirs, executors, administrators and assigns, then the
mortgagee, his heirs, executors, administrators and assigns will not call up
the principal sum until [date]; and it is also agreed that the mortgagor, his
heirs, executors, administrators and assigns, will not call upon the mortgagee,
his heirs, executors, administrators and assigns, to accept repayment of the
principal sum until [date].
34
Marshall v Cottingham [1982] 1 Ch 82 at 88.
35
David Mellinkoff, Legal Writing: Sense and Nonsense, p. 44.
36
Piesse, Elements of Drafting, pp. 1078.
188 Modern Legal Draf t i ng
The length of this clause could easily be reduced by appropriate deni-
tions, thus:
r
The mortgagor includes the mortgagors heirs, executors, administrators
and assigns.
r
The mortgagee includes the mortgagees heirs, executors, administrators
and assigns.
Even without further revision (benecial though it would be), the clause
can now be shortened to:
The mortgagee covenants with the mortgagor that if the mortgagor pays on
time all instalments of interest and observes all the covenants to be performed
by the mortgagor, then the mortgagee will not call up the principal sum until
[date]; andit is alsoagreedthat the mortgagor will not call uponthe mortgagee
to accept repayment of the principal sum until [date].
Location
Where should denitions appear in the document? The traditional tech-
nique is to put them at the start. There is, of course, some logic to this.
The reader encounters the dened meanings early, before meeting the sub-
stantive provisions of the document, and so can proceed knowing that par-
ticular words and phrases are to be understood in a particular way. But
the drawback at least in a complex document is that the reader must
conquer (or so it seems) the daunting thicket of denitions before even
beginning to wrestle with the substantive provisions. For the lay reader, the
document then becomes unnecessarily intimidating. In contrast, the lawyer,
familiar with this placement, is likely to proceed directly to the substantive
provisions and then return to the denitions to ll out meaning where
necessary.
Another technique, common in legislative drafting, is to place denitions
at the end of the document. This too has some logic to it. The reader begins
with the substantive provisions, coming to the denitions later, by which
time some feeling has been obtained for the thrust of the document. But this
technique is not entirely effective where the document appends schedules
or annexures, for then the denitions are likely to be at neither the start
nor the end of the document, but somewhere in the middle, making them
difcult to nd in a hurry.
How t o Draf t Modern Document s 189
A third technique, aiming to capture the best of both worlds, is to begin
or end the document with an index of dened terms, at the same time
explaining that they are dened at other (specied) points in the document.
This technique sometimes appears in legislation.
37
It allows the reader to
move fairly directly to the substantive provisions, forewarned that certain
words and phrases have dened meanings but not yet burdened with the
detail of those meanings.
Auseful technique is to create a separate denitions clause for important
inter-related matters. Assume that in a document dealing with the business
of jet boats it proves necessary to state (or dene) what is meant by boat,
jet boat, adventure jet boat and non-adventure jet boat. If these are dealt
with alphabetically, the reader perusing the denition of adventure jet boat
does not yet know what is meant by the basic term boat. The problem is
compounded if all denitions in the document are lumped together in
one alphabetical list. The solution is to separate related denitions into
a subgroup, moving from the general to the particular and to the more
particular. So in our example, the heading might be Meaning of boat and
related expressions, and the order inwhich the items are dealt with would be
(1) boat (2) jet boat (3) adventure jet boat, and (4) non-adventure jet boat.
Similar examples are legion: for instance, substance, noxious substance
and non-noxious substance.
Sometimes, denitions are used only once, or only within a particular
part of a document. These are best placed near where they occur, rather than
in a list of general denitions. This helps the reader more efciently nd the
place of denition, and more directly reminds the reader that the word or
phrase is used in a special sense.
Highlighting dened terms
Most lawyers highlight each dened term wherever it appears in a docu-
ment. Readers, alerted that the term is used in a special sense, can then
check the denition. In traditional legal documents, the conventional way
to highlight a dened term is to capitalise the initial letter of the word (or
of each word, if the term comprises more than one word). However, this
convention may well disconcert lay readers who are unfamiliar with it. It
may also lead to some uncertainty where a dened word appears at the start
37
For example, in the Native Title Act 1993 (Cth) and the Inquiries Act 2005 (UK).
190 Modern Legal Draf t i ng
of a sentence or at the start of a heading: since the rst letter of words in
these positions is always capitalised, is the word being used in its dened
sense?
38
But as we mentioned in Chapter 5, the convention is so entrenched
that it will be difcult to overturn. That, of course, is no justication for
preserving it. Other methods of highlighting dened terms are available,
and should be considered. One is to print dened terms in italics, a con-
vention that some Australian parliamentary drafters now use. Another is
to mark them with an asterisk, perhaps adding a running footer to the
following effect: Asterisked terms have dened meanings, to be found in
clause X.
Whichever method is chosen, it should not unduly interrupt the readers
ow. Highlighting techniques draw attention to themselves, offending the
principle that legal documents should followthe ordinary rules of composi-
tion. For this reason, the legislative drafting convention still used in many
countries, including England of leaving dened terms unhighlighted, has
much to commend it. In legal drafting, as in writing generally, lack of clutter
is a desirable attribute.
Avoiding long alphabetical lists
Try to avoid using long alphabetical lists of dened terms. The longer they
are, the more muddling they can become particularly where terms related
insense become separatedby many letters of the alphabet (see our discussion
above about terms such as boat and jet boat). And if you choose to dene
a word or phrase, do your best to show (subtly and so as not to disturb the
sense of the sentence) that it is used in a special sense.
Explanations or descriptions rather than denitions
The private drafter almost always resorts to dictionary-type denitions.
The public drafter is often more astute, relying where appropriate more on
explanations or descriptions than on pure dening even if that explana-
tion or description is sometimes preceded by includes rather than means
(the standard lead-in word for a denition) or is (a non-standard but
often useful variant). A good example of an explanation is found in the
admirably-drafted UK Arbitration Act 1996 s 5(2):
38
See, e.g. R A & K Becker Pty Ltd v Cariste Pty Ltd [2001] NSWSC 663 (11 BPR 20,111),
where a clause was headed Equipment but the wording of the clause used the (lower
case) equipment. This, the judge said [at para 28], made it unclear whether the heading
is intended to refer to equipment generally, or to the Equipment (the dened term).
How t o Draf t Modern Document s 191
There is an agreement in writing
(a) if the agreement is made in writing (whether or not it is signed by the
parties),
(b) if the agreement is made by exchange of communications in writing, or
(c) if the agreement is evidenced in writing.
Tables, plans and formulas
Modern legal documents exhibit a growing trend towards the use of tables,
plans andformulas. Inthe hands of the adept drafter, these are indispensable
tools for conveying information more efciently than mere words ever can.
Tables
Tables and tabulation can be used to illustrate the order of steps in a trans-
action, or to set clauses side-by-side for easy comparison, or to show lists of
gures. Their usefulness can be seen in Table 4, taken from an agreement to
sell a piece of land and to build a house on it.
Table 4 Use of a table in a contract
Payment table
(a) The Purchaser will pay the Smiths:
Stage Amount () Triggering event Date due in 2006
1 60,000 Completion of model transfer 3 July
2 30,000 At damp proof course 24 July
3 50,000 At wall plate level 1 September
4 50,000 When the roof of the dwelling is on
and the dwelling is plastered out
30 September
5 60,000 On nish of the works 22 October
(b) The dates for stages 2, 3, 4 and 5 are estimates only, but the date at stage 1
is the contractual date for completion of the model transfer.
Plans
Plans can often convey information more effectively than words. They are
traditionally used to identify land in conveyances,
39
leases, and transfers of
39
A buyer cannot insist on a plan where the contract description is clear: Re Sharmans
Contract [1936] Ch 755. However, the buyer can compel the seller to convey by reference to
192 Modern Legal Draf t i ng
part of the land in a registered title. But they are suitable for many kinds
of legal documents, including pleadings (where they are used occasionally)
and wills (where they are almost never used).
Of course, plans should be used only if they are accurate. Inaccurate plans
are a fertile source of litigation. So too are plans that are accurate enough
for some purposes, but insufciently precise for the particular task in hand.
Conveyancing plans in England and Wales are often insufciently accurate
to describe the property being conveyed.
40
The English Court of Appeal in
Scarfe v Adams reminded conveyancers of the consequences of inadequate
plans. After stating that a small-scale Ordnance Survey mapwouldbe wholly
inadequate in ordinary conveyancing, Cumming-Bruce LJ warned:
I hope that this judgment will be understood by every conveyancing solicitor
inthe landas giving themwarning, loudandclear . . . [It] is absolutely essential
that eachparcel conveyedshall be describedinthe conveyance or transfer deed
with such particularity and precision that there is no room for doubt about
the boundaries of each, and for such purposes if a plan is intended to control
the description, an Ordnance map on a scale of 1:2500 is worse than useless.
The plan or other drawing bound up with the deed must be on such a large
scale that it clearly shows with precision where each boundary runs. In my
view the parties to this appeal are the victims of sloppy conveyancing for
which the professional advisers of vendor and purchasers appear to bear the
responsibility.
41
Another source of difculty in conveyancing transactions is discrepancy
between the words used to describe a property and the plan used to describe
the same property. Whichprevails: the verbal descriptionor the plan? Some-
times the answer can be gleaned from the document. Thus if the plan is
said to be for the purposes of identication only a phrase we criticised
in Chapter 5 the verbal description prevails.
42
Conversely, if the verbal
description proclaims that the property is more particularly described in
a plan where it is impossible to describe the property sufciently without one: Re Sparrow
and James Contract [1910] 2 Ch 60.
40
Theodore B. F. Ruoff and others (eds), Ruoff and Roper on the Lawand Practice of Registered
Conveyancing (looseleaf, London: Sweet & Maxwell, 1996), para 401.
41
[1981] 1 All ER 843 at 845, CA.
42
Hopgood v Brown [1955] 1 WLR 213, 228, CA; Webb v Nightingale (1957) 107 LJ 359;
Neilson v Poole (1969) 20 P & CR 909; Wigginton and Milner Ltd v Winster Engineering Ltd
[1978] 1 WLR 1462, CA; Johnson v Shaw [2004] 1 P & CR 10 at 133, 138 (CA).
How t o Draf t Modern Document s 193
the plan,
43
the plan prevails. But at other times the answer is far from clear,
as where the following unhelpful (and all too common) phrases are used:
for the purposes of identication only more particularly delineated
44
or
for identication more particularly described.
45
In such cases, it becomes
a question of construction of the instrument as a whole whether the plan
prevails over the verbal description, or vice versa. In practice, where the
answer is unclear the court will probably hold that the verbal description
prevails.
46
Judges take a realistic approach to the role of plans, particularly in con-
veyancing transactions. For instance, a plan has been held decisive in show-
ing that a conveyance passed the entire building within the area delineated
on the plan, even though that building included a room projecting from a
neighbouring property.
47
On the other hand, where a plan in a conveyance
of a dwelling-house showed that a wall of the house abutted the bound-
ary but did not showthat the footings supporting the wall projected slightly
beyond the coloured portion of the plan, the conveyance was held to include
the footings. This was because a conveyance of a dwelling-house means all
the parts of the dwelling-house, including the eaves and the footings and
any projections of the house.
48
43
Eastwood v Ashton [1915] AC 900 at 920, HL.
44
See Neilson v Poole (1969) 20 P & CR 909 at 916, where Megarry J roundly condemned
the phrase; Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894 at 899, where Lord
Hoffmann described the phrase as fairly inconclusive.
45
These phrases have echoes in as joint tenants in equal shares, another nonsense phrase
which strings together two conicting notions. See Martin v Martin (1987) 54 P & CR
238 (as benecial joint tenants in common in equal shares held to create a tenancy in
common); and Re Barbour [1967] Qd R 10 (share and share alike as joint tenants held to
create joint tenancy). See also comments by J. E. Adams, Whats Mine is Mine and Whats
Yours is Ours [1987] Conv 405.
46
Druce v Druce [2004] 1 P & CR 26 at 433 (CA).
47
Laybourn v Gridley [1892] 2 Ch 53; Grigsby v Melville [1974] 1 WLR 80, CA.
48
Truckell v Stock [1957] 1 WLR 161, CA. However, the conveyance does not necessarily
include the column of air between the projecting eaves and the projecting footings (ibid.
at 163, Lord Denning LJ), nor, presumably, the airspace above the projecting eaves or
the ground below the projecting footings. In the nineteenth century and early twentieth
century, it was common to describe land as the same is now in the occupation of [John
Smith] as tenant thereof. In Corbett v Hill (1870) 9 LREq 671 this type of wording was held
to convey a projecting room but not the column of air above it. This form of description
has now died out, a happy circumstance given its inadequate nature.
194 Modern Legal Draf t i ng
Graphs, ow charts and similar techniques
Graphs andsimilar techniques owcharts, bar charts, pie charts, sketches
can be useful in presenting or interpreting legal ideas. They are already seen
in some commercial documents as technical annexes or schedules, where
specialists (such as structural engineers, scientists and architects) set out
their own message in their own way. But they could be used much more
in legal documents generally. Indeed, graphs and diagrams are sometimes
the only way to give information with sufcient precision. For example, in
the eld of patents, they are considered essential. They are also particularly
useful in road trafc regulations, as Panel 10 illustrates.
49
Flow charts are particularly useful in complex commercial documents to
showsuchmatters as the steps tobe takenina transaction, or the structure of
apartnershipor joint venture. Flowcharts arealreadycommoninlegislation.
An example is found in the Australian Native Title Act 1993, s 203AA(5)
see Panel 11 on p. 196. Drafters of legal documents could do well to follow
this legislative lead.
Formulas
Properly used, mathematical formulas can replace words reducing length,
aiding comprehension, and preventing ambiguity.
50
The formulas them-
selves can be quite simple. Take this example from the English Rent
Act 1977, designed to work out what part of a premium lawfully paid
on the grant or assignment of a tenancy can be recovered on a later
assignment:
The fraction is
X
Y
where
X is the residue of the term of the tenancy at the date of the assignment, and
Y is the term for which the tenancy was granted.
49
For goodexamples, see RoadTrafc Regulations 1991 (LawReformCommissionof Victoria,
Discussion Paper, 1991), and Proposed Australian Road Rules (National Road Transport
Commission, 1995). Both combine plain English with coloured diagrams.
50
For example, Casen and Steiner have shown that by use of the Heaviside unit step function
(invented by Oliver Heaviside and used in engineering applications), potentially ambigu-
ous words can be replaced by a precise mathematical formula which caters for varying
conditions. The formula and its associated denitions ran to nearly three typed pages. See
M. Casen and J. M. Steiner, Mathematical Functions and Legal Drafting (1986) 102 Law
Quarterly Review, p. 585.
How t o Draf t Modern Document s 195
Panel 10 Regulatory signs
196 Modern Legal Draf t i ng
Are there one or more representative
bodies for the area?
Invitations may be made under
section 203A at any time to all
eligible bodies
Initially, invitations may only
be made to existing
representative bodies
(subsection 203AA(3))
Did any of those existing
representative bodies apply
within the relevant application
period?
Invitations may be made under
section 203A, after the end of
the application period, to all
eligible bodies (paragraph
203AA(4)(a))
Has an existing representative body
that applied within the application
period been recognised as the
representative body for the area?
Invitations may be made under
section 203A, after all the
applications have been rejected,
to all eligible bodies (paragraph
203AA(4)(b))
Only one representative body can be
recognised for the area (subsection
203AD(4)), so further invitations
would be unnecessary
Yes
Yes No
Yes
Then, after the
invitations are made...
No
No
Note: These rules will not apply once the transition period has ended.
5) This diagram shows when, under section 203A and this section, invitations can be
made, during the transition period, for applications for recognition as the
representative body for a particular area.
Diagram of the rules for making invitations
Panel 11 Example of ow chart from Australian Native Title Act
How t o Draf t Modern Document s 197
Another example might be the calculation of the price in an option to
purchase land:
The price is
[(AB) 80%] OF
where
r
A = open market value
r
B = the costs
r
OF = the option fee
Sometimes, a mathematical formula can express a concept unambigu-
ously where a verbal formula would be ambiguous. Thus, the relatively
simple and unambiguous mathematical formula
250
3
+7
canbe expressedverbally as the square root of twohundredandfty divided
by three plus seven.
51
But those words, usedalone, are ambiguous, since they
can mean
250
3 + 7
or
200 +
50
3
+7
or
200 +
50
3+7
Drafters should not fear that judges are hostile to the use of mathematical
formulas. Quite the contrary: judges have encouraged their appropriate use
in legal documents. For example, in London Regional Transport v Wimpey
Group Services, Hoffmann J concluded his judgment:
Finally, I might be allowedtooffer a wordof advice tobothsurveyors andcon-
veyancers. I doubt whether the mistakes whichgave rise tothis litigationwould
have happened if the surveyors formula had been expressed algebraically
instead of verbally, either in the original correspondence or the agreement.
51
See David Crystal, The Cambridge Encyclopedia of Language (Cambridge: Cambridge Uni-
versity Press, 1987), p. 381.
198 Modern Legal Draf t i ng
Rent formulae can often be expressed more simply and unambiguously in
algebraic form and this case shows that a very modest degree of numeracy
can save a great deal of money.
52
Notes and examples
There is a growing trend in legislation to insert notes and examples to help
readers understandthe effect of provisions.
53
These devices canalsobe useful
in private legal documents. Thus, notes may give a summary or overview
of a particular provision. They may also provide useful navigational aids,
helping the reader around the document by indicating other provisions to
keep in mind when reading the particular provision. To illustrate: a clause
in a mortgage may end with a Note pointing readers to other clauses in the
mortgage that deal with related material.
Examples may provide helpful illustrations of complex provisions. Thus,
a rent review provision in a lease may contain a working example of the
way in which the valuer is to take into account the various factors that are
relevant to calculating the revised rent.
It is useful to indicate whether notes or examples form part of the doc-
ument for the purposes of interpretation, or whether their purpose is to
provide helpful hints to the reader without being part of the document
for the purposes of interpretation. Otherwise, doubt (and litigation) may
arise over their precise function and status.
54
Drafters who give thought to
such matters commonly insert a double disclaimer to the following effect:
(1) notes or examples are for informationonly, andare not intendedtoaffect
the construction of the document; and (2) if a note or example conicts
with the text to which it relates, the text prevails. While there are legislative
precedents for disclaimers of this kind, they give the impression that the
52
(1986) 280 EG 898. This case is discussed in Chapter 2.
53
The devices are not new: examples can be found in the Indian Evidence Act of 1872, cited
in Law Reform Commission of Victoria, Report No. 33: Access to the Law: The Structure and
Format of Legislation (1990), pp. 545.
54
See, e.g. Sklavenites v Phoenix Prudential Australia Ltd (1986) 4 ANZ Insurance Cases
60-745, where the New South Wales Court of Appeal had to decide whether a statement
introduced by Note: was a condition of the insurance policy; One.Tel Ltd v Rich (2005)
190 FLR 443, where the New South Wales Supreme Court had to decide whether a Note
in a statute was part of the statute for interpretation purposes.
How t o Draf t Modern Document s 199
drafter is insecure about the effect of the document. But in any case, the
drafter should take care to ensure that the examples are correct, for nothing
is more apt to confuse than an example in conict with its accompanying
text.
55
We add three other cautions about the use of examples. First, exam-
ples should be used only to illustrate the operation of provisions that are
complex or difcult. An example that states the obvious insults the readers
intelligence. Second, examples should not be used to introduce substantive
material. The proper place for that material is in the substantive provisions
themselves. Third (and related to the second caution), examples should
not stretch the ambit of the text they are intended to illustrate; for this
will inevitably give rise to argument whether an extension of meaning is a
legitimate (and effective) purpose of an example.
56
Simplied outlines
Another trend in legislative drafting is the use of simplied outlines, or
overviews. They give the reader an overview of what is to follow, and may
be outlines of the whole Act, or a part of the Act, or a specic section. An
example is found in s 3 of the Australian Members of Parliament (Life Gold
Pass) Act 2002:
3 Simplied outline
The following is a simplied outline of this Act:
r
This Act sets out the entitlements of holders of a Life Gold Pass.
r
The basic rules are as follows:
(a) a former Prime Minister is entitled to a maximum of 40 domestic return
trips per year;
(b) other pass-holders are entitled to a maximum of 25 domestic return trips
per year.
55
As in Whittaker v Comcare (1998) 28 AAR 55.
56
As occurred in Campbells Cash and Carry Pty Ltd v National Union of Workers, New South
Wales Branch (No 2) (2001) 53 NSWLR 393.
200 Modern Legal Draf t i ng
r
This Act also deals with travel by:
(a) spouses of pass-holders; and
(b) the widows and widowers of deceased pass-holders; and
(c) the spouses of sitting members who have satised the qualifying period
for the issue of a Life Gold Pass.
r
If a superannuation order is made under the Crimes (Superannuation Benets)
Act 1989 in relation to a person convicted of a corruption offence, the person is
disqualied from Life Gold Pass travel and severance travel.
Drafters of private legal documents might usefully consider this tech-
nique, particularly for documents that are long or complex. The outline
gives the reader a birds-eye view of the document, introducing the main
points and key concepts in summary form. The language may be collo-
quial, since the outline does not presume to include substantive provisions.
Indeed, by boxing the outline (as in the above example), the drafter clearly
distinguishes the outline from the substantive provisions.
Shall and the modern document
In Chapter 5 we dealt with some of the interpretational difculties caused
by shall. We mentioned particularly the potential for imprecision the word
raises in two contexts: the futurity/precondition division, and the obliga-
tion/direction division.
Some modern writers still feel that shall has a place in legal documents.
They distinguishbetweenprovisions that express a command andprovisions
that are merely directory. By directory they mean provisions requiring a
certain course to be taken but imposing no sanction for breach provisions
that deprive the subject of an opportunity or right, but whose breach gives
rise to no legal consequences. In the view of these writers, must should
be used for directory provisions but shall should be retained to impose a
command (mandatory).
57
57
See Reed Dickerson, Fundamentals of Legal Drafting, 2nd edn (Boston and Toronto: Little,
Brown and Co., 1986), p. 214; R. W. Ramage, Will or Shall? (1970) 120 New Law Journal,
p. 402; R. Dick, Legal Drafting in Plain Language, 3rd edn (Toronto: Thomson Canada,
1995), p. 93; Robinson, Drafting, p. 40.
How t o Draf t Modern Document s 201
This viewseems to be based onthe premise that to use must for obligation
leaves nothing distinctive for direction. Yet to prescribe shall for obligation
andmust for directionseems unnecessarilypedantic andas a practical matter
invites trouble.
58
It also overlooks the linguistic reality that in common
speech shall is nowused only rarely, and that where it is used it can have two
quite different senses: to indicate compulsion (You shall shut the door) or
futurity (TomorrowI shall shut the door). To use it in legal documents can
give rise to the same ambiguity.
Themoderntrendis toeliminate shall altogether andreplaceit withsome-
thing more appropriate usually must. As long ago as 1985 the Attorney-
General of Victoria, in a ministerial statement on legislative drafting, stip-
ulated that in future legislation must was to replace shall wherever shall was
used to impose an obligation.
59
The Law Reform Commission of Victoria
recommended the same approach in its report on plain language.
60
These
pioneering views received a degree of judicial criticism especially when
used in the negative form, must not
61
and some professional resistance.
62
However, the move to must is now seen in the legislation of many jurisdic-
tions, including most Australian states, NewZealand, and Canada.
63
Must is
also nownding favour inthe United Kingdom.
64
Lawyers who draft private
legal documents could well follow this lead.
58
Some exemplars of the modern style, such as Garner and Kimble, see some benets in
preserving this use of shall, although conceding as a practical matter that must is preferable:
B. Garner, Dictionary of Modern Legal Usage, 2nd edn (Oxford: Oxford University Press,
2001), pp. 93942; J. Kimble, The Many Misuses of Shall (1992) 3 Scribes Journal of Legal
Writing, p. 61 (cf M. Asprey, Shall Must Go, ibid., p. 79, and Kimbles rejoinder, ibid.,
p. 85).
59
Victoria Parliament, Plain English Legislation [Melbourne, 1985], p. 6; also in Victorian
Parliamentary Debates, vol. 377, pp. 4327. See also Canadas Uniform Interpretation Act
196768, c 7, ss 10 and 28.
60
Report 9: Plain English and the Law (1987), vol. 1, p. 61.
61
Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439 at 4456 (Tadgell JA).
62
See correspondence in the Australian Law Journal: (1989) 63, pp. 758, 5225, 726728;
(1990) 64 ALJ 1689.
63
See A. Watson-Brown, Shall Revisited (1995) 25 Queensland Law Society Journal (June),
p. 263; A. Watson-Brown, Do We Still Need Shall? [1998] Hong Kong LawJournal, p. 29;
New Zealand Law Commission, Legislation Manual (Wellington, 1996), paras 1713. In
Canada, some provinces use must to impose obligation; in British Columbia, for example,
since 1992 the statutes of British Columbia use must for this purpose, bolstered by s 29
of the Interpretation Act (RSBC, 1996, Chapter 238) requiring courts to construe must as
imperative.
64
See Human Rights Act 1998, a quiet about-turn in English parliamentary drafting.
202 Modern Legal Draf t i ng
Of course, drafters must use must consistently. In careless hands, must
can be as ambiguous as shall.
65
Judges have always felt free in appropriate
circumstances to interpret shall as creating a mere direction or discretion
that is, to read shall as may.
66
So too they will feel free to construe must
as may (and to construe may as must).
67
There is one difference, however:
unlike shall, there is as yet no established line of authority to comfort a judge
who is tempted to adopt such a exible construction of must. Judicial state-
ments to date all support the view that must is to be read as mandatory. For
example, as long ago as 1979, the Ontario Divisional Court said that must
has to be considered mandatory, and that it was not an equivocal word like
shall, which courts had held could be either mandatory or directory.
68
More
recently, a British Columbia judge (construing a statute which formerly
provided that the Court shall make an order restraining a person from
disposing of matrimonial assets, but which had been amended to provide
that the Court must make the order) said that must entails a more manda-
tory obligation, admitting of less discretion in the Court.
69
And Australian
judges have expressly recognised that must is quite sufcient to impose an
obligation.
70
Some drafters shunmust because they see it as too harsh or heavy-handed
for the tone of their document. This attitude should not be dismissed out of
hand as precious. The tone of a document may be important. For instance,
65
JohnLyons, IntroductiontoTheoretical Linguistics (Cambridge: Cambridge UniversityPress,
1968), p. 309.
66
See, for example, Balabel v Mehmet [1990] 1 EGLR 220 (CA), where a clause in a contract
for purchase of a leasehold entitled the purchaser to go into possession before completion,
but provided that if the landlords consent to assignment was refused within a stated time,
then the Purchaser shall vacate the premises. In the context, it was held that shall meant
shall be entitled to, or may. See also Chapter 5.
67
As in Samad v District Court of NewSouth Wales (2000) 50 NSWLR270, where three appeal
judges held that, in the particular context, a provision that an ofcial may cancel a licence
meant that the ofcial must cancel the licence; reversed on appeal, (2002) 76 ALJR 871,
where the High Court held that, in the particular context, may meant what it said that is,
it conferred on the ofcial a discretion, not an obligation.
68
Re Agricultural Union v Massey-Ferguson Industries Ltd (1979) 94 DLR (3d) 743. But see
Brygel v Stewart-Thornton [1992] 2 VR 387 at 37999 (followed in Re Phillip Andrew Balyl
(1994) 75 ACrimR575), holding that a statutory provisionthat a document must contain
specied material was satised if the document contained substantially that material.
69
Lovick v Brough (1998) 36 RFL (4th) 458 at para 7.
70
South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35
at 38; Surveyor-General v Seychell (2002) 81 SASR 277 at 286 (the word must denotes a
mandatory obligation).
How t o Draf t Modern Document s 203
where parties have worked hard to develop a relationship of mutual co-
operation and respect, an overuse of must in the document which regulates
their relationshipmight bethought tointroduceanunnecessarilyadversarial
attitude. In such a case, the drafter might try is to, an alternative now quite
acceptable as a means of creating compulsion for example: the tenant is
to keep the premises in repair or the landlord is to provide a set a keys.
71
And despite the principle that drafters should be rigorously consistent in
their use of terminology, in a lengthy document the drafter may well slip.
Indeed, some variation of terminology may be appropriate in different parts
of the document where a different tone is called for. Elegant variation is a
literary device. To insist on precisely the same terminology and a uniform
tone may make the document mind-numbingly boring. Thus, it may be
appropriate to use both must and is to in the same document.
72
Variation
can add interest, provided it does not introduce ambiguity or uncertainty.
Handling generality and vagueness
Sometimes, lawyers must draft ingeneralities. Detail may not be possible. An
example is where the parties to a document have settled heads of agreement
and wish to bind themselves contractually without waiting for ne detail to
be worked through. Usually, this does not cause any problem. Generality
is to be condemned only where it produces ambiguity that is, something
open to two or more different meanings.
Sometimes, too, lawyers must use expressions that are inherently vague,
for nothing more precise is available. Examples are: reasonable, as soon as
possible, as soon as practicable, immediately, whenever, reputable, satisfactory,
usual, material, fair, proper. The import of these and similar words varies
with the context. Here, too, condemnation is appropriate only where the
vagueness leads to ambiguity.
71
Examples are the EnglishStandardConditions of Sale of Land(see RichardCastle, Standard
Conditions of Sale: a Milestone (1990) 16 Law Society Gazette, p. 24), and the English
Standard Commercial Property Conditions.
72
For examples, see s 133Dof the Real Property Act 1900 (NSW), where is to and must are used
interchangeably in the one section; and s 83 of the Retirement Villages Act 1999 (NSW),
where will and must are used interchangeably in the one sentence.
204 Modern Legal Draf t i ng
In some contexts, vagueness can be a benet.
73
David Mellinkoff praises
what he calls calculated ambiguity, equating it withexibility andthe use of
vague words like necessary, reasonable, substantial, satisfactory and proper.
74
Consider, for example, the following right of way, granted on the sale of a
council house. It exhibits elements of vagueness, but it is not ambiguous:
The right to pass and repass at all times with or without vehicles over that
part of the vehicular access as is shown coloured brown on the plan annexed
hereto subject to the payment to the Council . . . of a proportion of the cost
of maintenance and upkeep thereof.
The precise proportion to be paid is not specied (nor would the obliga-
tion be any more precise if the drafter had employed a more commonly
used phrase: a proper proportion, a fair proportion, a proper proportion
according to use, or the like). In reality, the parties will use their common
sense to calculate a gure as the question arises from time to time. Spec-
ifying a more precise formula is not a central issue in the document, and
the risk that the clause will be tested in court is so remote that it can be
discounted. Provisions of this kind rarely prove a problem. They demon-
strate the adage that drafters should ask themselves Will it work? rather
than What will a judge think of it?, which in turn reects the late Professor
J. E. Adamss distinction between planning for performance and planning
for risk.
75
Again, consider the following extract from a franchise agreement for a
milk round:
The Franchisor undertakes . . .:
(a) To supply sufcient Liquid Milk and Milk Products . . . as the Franchise
Operator may require to enable him to provide a regular and efcient
service to retail customers in the Franchise Area.
The words sufcient, regular, and efcient, are incapable of precise de-
nition. But the parties can see quite well what is meant, and given that each
73
Reed Dickerson, Fundamentals of Legal Drafting, pp. 35, 39.
74
Language of the Law, p. 450.
75
J. E. Adams, Address to the Commerce and Industry Group of the Law Society of England
and Wales, reported at (1982) 72 Law Society Gazette, p. 1582. Professor Adams was the
precedents editor of the leading English journal, The Conveyancer and Property Lawyer.
How t o Draf t Modern Document s 205
side gains advantages fromthe contract, it works. The writing, though fuzzy,
is adequate for the occasion.
Of course, some legal documents demandmore precisionthanothers. For
example, inconveyances of landit is important tobe precise indescribing the
property being conveyed (the parcels clause). But evenhere some exibility
may be allowed. An example is the parcels clause from the conveyance set
out below. Although hardly a model of sharp drafting, the description of the
width had to be vague because the strips of land in question were hundreds
of yards long:
ALL THOSE four strips of land varying in width between one and two feet
adjoining on the northern and southern side of the public highway, all which
said strips of land form part of the holding known as Cowleaze Farm, . . .
all which four lengths of such strips being identied on the plan marked A
annexed hereto by red lines.
Undertakings, also, should set out clearly what is undertaken to be done.
This is particularly the case with undertakings given by lawyers, for they
must be susceptible tojudicial enforcement as part of the courts supervisory
jurisdiction over their ofcers.
76
But with some other kinds of undertak-
ings, a degree of woolliness may be excused. The following is a borrowers
undertaking to a building society:
I undertake that I will carry out the following work to the above property
within six months of completion of your mortgage advance to me on the
security of the above property, namely:-
1. Replace few roof slates (house and garage).
2. Repair gutter joints.
3. Repair plumbing joints at base of hot water cylinder.
4. Remedy dampness to chimney-breast in bedroom (boiler ue may need
lining) check damp roof timbers above.
5. Examine very slight woodworm attacks to oorboards in loft and under
the staircase treat if still active
Some of the borrowers obligations are expressed vaguely. Yet as long as both
sides acknowledge the vagueness (which they can be taken to have done),
76
Re a Solicitor [1966] 1 WLR 1604; Wade v Licardy (1993) 33 NSWLR 1 at 79; Re C (a
solicitor) [1982] 1 NZLR 137.
206 Modern Legal Draf t i ng
no harm is caused. Undertakings like these rarely have to be enforced, for
in all probability the borrower will make sure the work is done.
Generality and vagueness, then, have a place in legal documents. But they
should be used sparingly, for excessive use of either can be counterproduc-
tive. Yet so too can excessive particularity. The problem lies in knowing on
which side of the line to go.
77
To illustrate the problems of excessive particularity, take the following
example of a tenants covenant in a commercial lease:
Not at any time on or after [date] to bring keep store stack or lay out upon the
landany materials equipment plant bins crates cartons boxes or any receptacle
for waste or any other item which is or might become unsightly or in any way
detrimental to the Premises or the area generally.
Does the covenant preclude the tenant from bringing onto the land any
barrels or tins? On one view, no. The maxim expressio unius est exclu-
sio alterius (the inclusion of one thing is the exclusion of the other; see
Chapter 2) suggests that the omission of barrels and tins from the list of
prohibited items is deliberate. But on another view, yes. The maxim eius-
demgeneris (where a list of twoor more items belonging tothe same category
is followed by general words, the general words are construed as conned
to the same category; see Chapter 2) suggests that barrels and tins are in the
same category as the items prohibited in the list, and so are included under
any other item. Whatever the result, it may be capricious. The drafters
over-particularity has posed problems of interpretation.
The clause could be made clearer by substituting a general word or words
for each list, along these lines:
r
bring keep store stack or lay out: allow
r
materials equipment plant bins crates cartons boxes receptacles for waste
or any other item: thing
r
is or might become: is
r
unsightly or in anyway detrimental: unsightly or detrimental
r
the Premises or the area generally: the premises or the neighbourhood.
77
See Lavery v Pursell (1888) 39 Ch D 508 at 517 (Chitty J); Hobbs v London & South Western
Railway (1875) LR 10 QB 111 at 121 (Blackburn J).
How t o Draf t Modern Document s 207
The clause could then be rewritten:
On and after [date], not to allow on the land anything which is unsightly or
detrimental to the premises or to the neighbourhood.
Syntactic ambiguity
In the previous section, we distinguished between vagueness and ambiguity.
We were there dealing withvagueness andambiguity inherent insome words
and phrases. But there is another form of ambiguity which drafters should
strive to avoid: syntactic ambiguity, or ambiguity arising from the location
of words or phrases within a sentence.
78
Consider, for example, the following provision from an English
regulation:
No person shall . . . remove . . . any fencing, gangway, gear, ladder, hatch-
covering . . . or other thing whatsoever required by these regulations to be
provided.
Do the italicised words qualify all the items in the list, or only the words
other thing whatsoever? In a case which considered that question, the trial
judge (McNair J) heldthat the words qualiedonly other thing whatsoever;
but on appeal, the Court of Appeal held unanimously that the words qual-
ied all of the items in the list.
79
Careful drafting would have avoided the
need to litigate this point.
Again, consider the following provision from an Australian statute:
A corporation shall not use . . . undue harassment or coercion in connection
with . . . the supply . . . of goods or services . . .
Did the word undue qualify only harassment, or did it qualify coercion
also? In two cases, judges held that undue qualied both words;
80
but in
78
P. Conway, Syntactic Ambiguity (2002), posted at <http://www.lawfoundation.net.au/
information/pll/syntactic.pdf>
79
Cockerill v William Cory & Son Ltd [1959] 2 QB 194.
80
Campbell v Metway Leasing Ltd [1998] ATPR41-630 (McInerney J); Australian Competition
and Consumer Commission v McCaskey (2000) 104 FCR 8.
208 Modern Legal Draf t i ng
another case, a judge held that it qualied only harassment.
81
Again, careful
drafting would have avoided the ambiguity.
We return to this matter later in this chapter, when we consider problems
with and and or.
Pronouns
Legal documents drafted in the traditional style tend to avoid personal
pronouns, such as she, they, we. More formal substitutes are used the
said, the aforesaid, and the like. This style, perhaps adopted in the mistaken
notion that it promotes precision, makes legal documents impersonal and
stuffy. In contrast, the modern style of drafting has no qualms about using
personal pronouns in legal documents. As David Mellinkoff puts it:
The plain language movement has rediscovered the pronouns you and I.
Some now hail these born again pronouns as the key to legal simplication.
The pronouns are short, easy to read, and give an appearance of intimacy
lacking in a third person label. Any normal person would rather be an I, or
even a you, rather than a Party of the First Part.
82
The I, we, and you style is now becoming common in modern legal
drafting. Properly used, it can greatly improve the accessibility of legal doc-
uments.
Although we embrace this trend towards pronouns, we add two caution-
ary notes. First, the chatty style of you and we may be out of place in a
document where one side wishes to impress the other with the formality
of the obligations being undertaken and the potential seriousness of their
breach. To quote Mellinkoff again:
The You and I format also has an inherent frailty that dictates cautious
use. The very virtue of conversational informality lends itself to conveying a
sense of camaraderie that may be essentially inconsistent with the adversary
relation of the parties. If pronouns get too friendly, they tend to induce an
unwarranted relaxation of attention to detail.
83
81
Australian Competition and Consumer Commission v Maritime Union of Australia [2002]
ATPR 41-849.
82
Legal Writing: Sense and Nonsense, p. 96.
83
Ibid., p. 98.
How t o Draf t Modern Document s 209
Second, used thoughtlessly, the style can produce drivel. Consider the
following example, a clause forbidding certain actions by a party to the
document:
You will not become bankrupt, commit an act of bankruptcy, call a meeting
with your creditors or reach any arrangement with them, or allow anyone to
present a bankruptcy petition against you.
Some of these events are quite beyond the promisors control for exam-
ple, the promise not toallowanyone topresent a bankruptcy petition. Essen-
tially, what the drafter intended was a promise not to trigger the prohibited
events by getting into nancial difculties. It would have been better to draft
those events as triggers for remedies enforceable by the other party to the
document. To speak of bankruptcy as a breach of obligation is to stretch
language unduly.
84
As a practical matter, if pronouns are employed to create a personal and
informal style, rarely should it be necessary to dene formally for whomthe
pronouns stand. Yet provisions like this are sometimes seen:
The words you or your mean Cardmember, that is, the person named on
the enclosed Card. The words we, our and us refer to American Express
Europe Limited or its successors.
Almost always, context makes these kinds of denitions tautologous.
Inclusive language
Allied to the topic of pronouns is the matter of gender-neutral, or inclu-
sive, language.
85
The traditional style of legal drafting prefers the male pro-
noun. Sometimes theinterpretativerider is addedthat maleincludes female,
reecting a common statutory provision to similar effect.
86
This is so even
84
Cadogan Estates Ltd v McMahon [2000] 3 WLR 1555 at 1561 (Lord Hoffmann) and 1567
(Lord Millett).
85
Helen Leskovac, Legal Writing and Plain English: Does Voice Matter? (1987) 38 Syracuse
Law Review, p. 1193; Sandra Petersson, Gender Neutral Drafting: Historical Perspective
(1998) 19 Statute Law Review, p. 93; Sandra Petersson, Gender-Neutral Drafting: Recent
Commonwealth Developments (1999) 20 Statute Law Review, p. 35.
86
For examples, see s 61 of the Law of Property Act 1925 (England), s 181 of the Conveyancing
Act 1919 (NSW).
210 Modern Legal Draf t i ng
where the document is a standardform, suchas a mortgage or lease, designed
for use by males and females alike.
The modern style of drafting as with writing generally avoids the
exclusive use of the male pronoun and consciously adopts a gender-neutral
approach. Some drafters achieve this result simply by replacing he with he
or she, withthe occasional inversionshe or he, as if tocorrect past infelicities
by linguistic afrmative action. This can produce strained language. It is
much better to redraft in a way that remains idiomatic.
The New Zealand Law Commission, in its 1996 Legislation Manual, sug-
gests a number of techniques for avoiding the male pronoun.
87
So too does
the British Columbia Law Institute, in its 1998 report Gender-Free Legal
Writing: Managing the Personal Pronouns.
88
The New Zealand Commission
takes as its example the clause A member of the Tribunal may resign his
ofce, and suggests the following devices:
r
Omit the pronoun: A member of the Tribunal may resign ofce.
r
Use both masculine and female pronouns: Amember of the Tribunal may
resign his or her ofce.
r
Repeat the noun: A member of the Tribunal may resign the ofce of
member.
r
Use the plural: Members of the Tribunal may resign their ofces.
Other techniques may also be used:
r
Convert a noun to a verb form (a practice to be encouraged in any case,
as we mentioned in Chapter 5). Thus the clause The landlord shall give
his consent to an application if he is satised . . . can be recast as The
landlord must consent to an application if satised . . ..
r
Use a relative clause. Thus, Where a landlord re-enters under the lease,
he may . . . becomes A landlord who re-enters under the lease may . . ..
r
Use they and its variants as a singular pronoun. Hence The landlord may
revoke his consent if . . . becomes The landlord may revoke their consent
if . . .. This technique is increasing in popularity. It is found in both private
legal documents and in statutes.
89
The Oxford English Dictionary traces
87
Report No. 35, Legislation Manual Structure and Style (Wellington, 1996), p. 47.
88
Available at <http://www.bcli.org.>
89
J Burnside, She He They (1999) 110 Victorian Bar News (Spring), p. 53, discusses
private documents. Statute examples are the Australian Corporations Law and the Ontario
How t o Draf t Modern Document s 211
its ancestry to the Rolls of Parliament of 1464. However, some drafters still
nd that it jars.
Whichever technique is used, of course, the drafter must be careful to
ensure precision and consistency. It is also preferable, stylistically, to adopt a
technique that does not unnecessarily draw attention to itself. For example,
if a document is intended for single parties, to draft in the plural will seem
incongruous. Those matters apart, no legal requirement demands retention
of the traditional male-only style. That style can always be replaced by
inclusive language, without loss of legal precision or effectiveness.
Problems with and, or
Legal drafters often overlook the potential for ambiguity inherent in the
simple words and and or. The most celebrated example in England is the
case whichhas come tobe knownas Re Diplock.
90
The judges whoconsidered
the case as it progressed through the various levels of courts expended an
estimated 70,000 words on whether the phrase charitable or benevolent
created a valid charitable trust in a will.
91
In the end, the House of Lords
ruled that it did not.
92
The issue arose because of the principle that a gift
does not create a charitable trust unless every object or purpose of the gift is
exclusively charitable; and not every benevolent object is charitable, as the
lawunderstands that word. Clearly, charitable and benevolent is preferable
to charitable or benevolent, since and cuts down the type of organisation
that can benet.
93
The potential for difculty in the use of these simple words is heightened
by cases which have held that and is not always conjunctive, and or is not
always disjunctive. These cases show that context may require the words to
be construed in ways contrary to their normal meaning.
94
Tobacco Tax Act 1990 (whichalso uses themself as a singular pronoun). For a more detailed
examination, see Corporations Law Simplication Program, Drafting issues: A singular
use of THEY (Simplication Task Force, Commonwealth Attorney-Generals Department,
September 1995).
90
Ending in the House of Lords under the name Ministry of Health v Simpson [1951] AC251.
91
The estimate is from F. L. Lucas, Style, 2nd edn (London: Cassell, 1974), p. 18.
92
In Chichester Diocesan Fund and Board of Finance v Simpson [1944] AC 341.
93
Re Sutton (1885) 28 Ch D 464 (charitable and deserving); Re Best [1904] 2 Ch 354.
94
See (1940) 56 LQR 451 (note by REM).
212 Modern Legal Draf t i ng
To illustrate: and was found to be disjunctive effectively meaning or in
Attorney-General of the Bahamas v Royal Trust Co. There, the Privy Council
was asked to interpret the following clause:
To use the income therefrom and any part of the capital thereof for any
purposes for and/or connected with the education and welfare of Bahamian
children and young people.
Their Lordships heldthat, since educationwouldnormally be for the welfare
of a child, some wider meaning had to be given to and welfare. Further, if
welfare was ancillary toeducation, a purpose connectedwith welfare would
necessarily be connected with education, so the reference to welfare would
againbe otiose. Withsuchabstruse reasoning, andwas heldtobe disjunctive.
In the result, the gift was void because it was not wholly charitable.
95
The Privy Council also treated and as disjunctive in the following clause:
[The property] shall be held by my trustees in trust for such charitable benev-
olent religious and educational institutions societies associations and objects
as they in their uncontrolled discretion shall select.
Lord Buckmaster said of the word and in this clause:
It is, in their Lordships opinion, impossible to use the word and as a link
intended to join all the words together and make the gift available only for
such institutions or objects as satised each one of the conditions represented
by eachof the separate words. Apart fromthe fact that sucha restrictionwould
all but render the gift inoperative, it is plain from the use of the word and in
the phrase institutions societies associations and objects which occurs twice
in immediate succession to the words in question, that and must be regarded
as or.
Inthe result, the trust failedbecause the clause allowedthe trustees tochoose
a body that was not charitable in the legal sense.
96
And was also found to be disjunctive in the following phrase, which
formed part of the objects clause of a theatrical association: To present clas-
sical, artistic, cultural and educational dramatic works.
97
The court held
95
[1986] 1 WLR 1001, PC.
96
Attorney General for New Zealand v Brown [1917] AC 393, PC, at 397.
97
Associated Artists Ltd v Inland Revenue Commissioners [1956] 1 WLR 752.
How t o Draf t Modern Document s 213
that the plays authorised could be classical or artistic or cultural or educa-
tional, or any combination. To have found otherwise would have narrowed
the repertoire to plays with all the named characteristics, which was clearly
not intended.
Likewise, and was held to be disjunctive in a statutory provision autho-
rising the court to make an order suppressing the publication of evidence
specically, the publication of certain persons names and any other mate-
rial tending to identify those persons. This construction was held to better
reect a parliamentary intent that the court was to have exibility in order-
ing the suppression of all or any material that would identify the persons.
98
Considerations of parliamentary intent were also relevant in an Australian
case where a statutory ofcial authorised a bank and receivers of a com-
pany to apply to court for a court order in relation to a companys affairs.
There was (the court considered) no practical reason under the legislation
to require both the bank and the receivers to apply for an order, particularly
as their interests were not entirely common; and so and was to be read as or,
enabling either the bank or the receivers to apply for the order.
99
Turning to cases considering the meaning of or: the House of Lords
construed or conjunctively in the following statutory provision:
If any oil to which this section applies is discharged from a British ship, the
owner or master of the ship shall . . . be guilty of an offence under this section.
The House of Lords held that both the owner and the master could be guilty
of an offence. Lord Wilberforce said that in logic there was no rule that or
must always carry an exclusive force; whether it does so depends on the
context.
100
Similarly, the New South Wales Court of Appeal held that and was to be
read disjunctively in the following legislative provision regulating compen-
sation for victims of crime: Compensation is payable only if the symptoms
and disability persist for more than 6 weeks. It was enough that either the
symptoms or disability persisted for more than six weeks.
101
98
Herald & Weekly Times Ltd v Vlassakis (2003) SASR 70 at 10812.
99
Re Peat Resources of Australia Pty Ltd (2004) 181 FLR 454.
100
Federal Steam Navigation Co. v Department of Trade [1974] 2 All ER 97 at 110. The Act
referred to is the Oil in Navigable Waters Act 1963.
101
Victims Compensation Fund v Brown (2002) 54 NSWLR 668. Strictly, the court regarded
the phrase symptoms and disability as a composite phrase a portmanteau phrase
214 Modern Legal Draf t i ng
And/or
The contrived conjunction and/or is becoming common in legal drafting.
Scrutton LJ once described its use in the document before him as so lib-
eral that it gave the appearance of being sprinkled as if from a pepper-
pot.
102
In recent times it has even appeared in statutes.
103
All this is despite
judicial strictures against its use. In the United States of America, judges
have condemned it as an abominable invention . . . as devoid of mean-
ing as it is incapable of classication by the rules of grammar and syntax;
and as that Janus-faced verbal monstrosity, neither word nor phrase, the
child of the brain of someone too lazy or too dull to express his precise
meaning, or too dull to know what he did mean; and as one of those
inexcusable barbarisms which was sired by indolence and damned by
indifference.
104
In England, Viscount Simon LC, when discussing confused
pleadings before the court, spoke of the repeated use of the bastard con-
junction and/or which has, I fear, become the commercial courts con-
tribution to basic English.
105
In Australia, a leading judge described the
phrase as an elliptical and embarrassing expression which endangers accu-
racy for the sake of brevity;
106
another judge described the common and
deplorable affection for and/or (in a notice to quit) as inviting trouble;
107
and yet another declared invalid the purported exercise of an option by
A and/or B.
108
Speaking in 1965, Lord Reid said that and/or was not yet part of the
Englishlanguage.
109
Now, 40years on, perhaps it is. Occasionally evensenior
using two words where one would have sufced, the drafter being motivated by the
comforting feeling that a pair of terms somehow conveys more than the sum of its parts
(citing Bennion, Statutory Interpretation: Supplement to 3rd edn, 1999, S 634).
102
Gurney v Grimmer (1932) 44 Lloyds L Rep 189.
103
For example, the Australian Trade Marks Act 1995.
104
AmericanGeneral Insurance Co. v Webster 118SW2d1084(Texas, 1938); Employers Mutual
Liability Insurance Co. v Tollefsen 263 NW376 at 377 (1935); Cochrane v Florida East Coast
Ry Co. 145 So 217 at 218 (1932).
105
Bonitto v Fuerst Bros & Co. Ltd [1944] AC 75 at 82.
106
Fadden v Deputy Commissioner of Taxation (1943) 68 CLR 76 at 82 (Williams J).
107
Millen v Grove [1945] VLR 259 at 260.
108
Burwood Project Management Pty Ltd v Polar Technologies International Pty Ltd (1999) 9
BPR 17,355.
109
John G Stein & Co. Ltd v OHanlon [1965] AC 890 at 904.
How t o Draf t Modern Document s 215
judges condone its use.
110
In our view, however, legal drafters should avoid
using it. No doubt its popularity springs from its usefulness in compressing
sentences. Thus, the drafter writes in a lease The landlord shall provide
electricity and/or gas. But while brevity is generally to be commended,
over-compression of expression tends to mislead. Here, the use of and/or
obscures the reality that the landlord has an option, satised by providing
either gas or electricity, with no obligation to provide both. The word and is
superuous, which is why its presence tends to confuse. The drafter should
have written The landlord must provide electricity or gas, and may provide
both.
Perhaps intheexamplejust consideredthereis noreal roomfor misunder-
standing. But the potential for misunderstanding multiplies exponentially
whenthe drafter uses a string of and/ors. This occurredinanAustraliancase,
where pleadings alleged a breach of duty by a large rm of solicitors. The
pleadings based the alleged breach on knowledge said to have been gained
by the rms partners A and/or B and/or C and/or D and/or E. The judge
described this use of and/or as particularly unhappy, since a statement of
claim should express precisely the foundation of the proceedings. He struck
out the pleadings.
111
Drafting in the present tense
The moderntechnique is todraft inthe present tense. This contrasts withthe
moretraditional style, whichoftenadopts morecomplextenseconstructions
as if required for precision. However, documents generally speak in the
present, and so it makes more sense to draft in the present tense. This makes
for clearer, crisper drafting, and should never cause ambiguity. For example,
traditional phrasing says:
r
If the purchaser shall fail to pay, then . . .
r
If the purchaser should fail to pay, then . . .
r
If the purchaser shall have failed to pay, then . . .
110
For example, Mason P in Big River Timbers Pty Ltd v Stewart (1999) 9 BPR16,605 at 16,608
(the meaning is clear); and the same judge in R v Jasper (2003) 139 A Crim R 329 at [31]
and [37].
111
Re Moage Ltd (1998) 153 ALR 711.
216 Modern Legal Draf t i ng
But the modern drafter says:
r
If the purchaser fails to pay, then . . .
The technique of drafting in the present tense is especially useful in
simplifying the structure of denitions. For example, the traditional style
says:
In this agreement, residence shall include a house.
But the modern style prefers:
In this agreement, residence includes a house.
To this exhortation to draft in the present tense we add a note of caution.
Depending on context, the use of the present tense in relation to a specied
act may indicate a requirement that the act should be continuing, with past
acts being irrelevant. For example, a Victorianstatute empowereda landlord
to require a tenant to vacate the premises if the tenant endangers (present
tense) the safety of neighbours. The use of the present tense indicated that
the landlords power arose only where the tenant was presently endangering
the safety of neighbours. The landlord could not exercise the power on the
basis of past conduct, now ceased.
112
Deeds
Many legal documents take the form of deeds. In some cases this is because
the law requires a deed (as distinct from a simple agreement) for example,
to create a legal interest rather than an equitable interest.
113
In other cases,
drafters adopt a deed because its formality helps to emphasise the solemnity
of the transaction.
114
Whatever the reason for using a deed, some matters
are relevant to drafting deeds in the modern style.
112
Director of Housing v Pavletic (2003) V ConvR 54668 ([2002] VSC 438).
113
For example, Law of Property Act 1925 (England and Wales), s 52; Conveyancing Act, 1919
(NSW), s 23B.
114
A deed is the most solemn form of document a person can make: Manton v Parabolic
(1985) 2 NSWLR 361 at 3679.
How t o Draf t Modern Document s 217
Formal parts of a deed
Some formal parts of a deed such as the testatum (Now this deed wit-
nesses), the habendum (to hold unto), and the testimonium (In witness
whereof the parties hereto) are antique and can be discarded. In fact, the
testatum and the habendum have all but disappeared already. The testimo-
nium, though, has shown surprising resilience. Almost 400 years ago the
eminent jurist Sir Edward Coke showed that the testimonium was unnec-
essary.
115
To jettison it now hardly seems radical.
Recitals
Recitals give the background to the document. They are easily identied,
being traditionally heralded by the ubiquitous Whereas. Sometimes recitals
are inserted out of habit, with no thought to whether they serve a purpose
in the document. If they do not, they can be safely discarded.
In the hands of experienced drafters, however, recitals may serve a useful
purpose. Sometimes, background information is useful in a document to
showwhere the parties have come fromand what they propose to do. In this
way, recitals can be used to set the scene for the heart of the deal, serving as
a statement of purpose and helping interpretation.
Recitals can also serve purposes more technical, but no less useful. For
example, a recital can create an estoppel, precluding the party who made the
statement from later denying the truth of the matter recited.
116
By a related
doctrine, a recital can operate to pass title to land. This is the doctrine of
feeding the estoppel. It typically occurs where a vendor who has no title to
land which he or she has purportedly conveyed under a deed of conveyance
recites in the deed that he or she has the title. By the doctrine, if the vendor
later acquires title to the land, then the title passes to the purchaser by
virtue of the recital without the need for any further conveyance.
117
Again,
recitals can ensure the benet (in later years) of the common statutory
115
Edward Coke, The First Part of the Institutes of the Laws of England; or a Commentary on
Littleton (rst published 1628), p. 7.
116
Bensley v Burdon (1830) 8 LJ (OS) Ch 85; Heath v Crealock (1874) LR 10 Ch App 22;
Discount & Finance Ltd v Gehrigs Wines Ltd (1940) 57 WN (NSW) 226; Grant v John
Grant & Sons Pty Ltd (1954) 91 CLR 112.
117
Re Bridgewaters Settlement [1910] 2 Ch 342. Cf First National Bank Plc v Thompson [1996]
Ch 231 (CA): estoppel even without recital. A similar doctrine applies where a mortgagor
recites in a deed of mortgage that he or she has title to the land; when the mortgagor later
acquires title, it passes to the mortgagee without the need for a further deed of mortgage.
218 Modern Legal Draf t i ng
provision that recitals of facts in documents of a certain age are presumed
to be correct.
118
Under a long-settled principle of interpretation, recitals can play a useful
(though limited) role in construing documents. Stated shortly, if the opera-
tive part of the deed is ambiguous and the recitals are clear, then the recitals
govern the construction. However, the limited extent of this principle is
apparent when set beside two subsidiary principles:
r
If the recitals are ambiguous and the operative part is clear, the operative
part prevails.
r
If both the operative part and the recitals are clear but inconsistent with
each other, the operative part prevails.
119
Even where recitals are useful, however, there is no need to perpetuate a
formalistic style. If recitals are thought useful, they can be grouped under
a heading such as Background, rather than the more formal Recitals; and
whereas can be dispensed with entirely.
Amending documents formally
Modern drafters would do well to consider the ways in which they amend
standard-form documents. One style is to adopt the traditional parliamen-
tary convention. For example, at the end of standard-form contract provi-
sions the drafter will add amendments along these lines:
r
In clause 27, delete agent and insert stakeholder.
r
In clause 35, delete rescission and insert termination.
r
Inclause 47, after notied insert inwriting, anddelete not where thirdly
appearing.
Unless the number of amendments is few, this amending technique is
cumbersome. It forces the reader to go backwards and forwards in the doc-
ument, trying to garner meaning from fragmented information. It is better
118
For example, Law of Property Act 1925 (England and Wales), ss 44, 45; Conveyancing Act,
1919 (NSW), s 53. Recitals of this kind can prove particularly useful in conveyancing
documents, allowing later vendors and purchasers to rely on the matters recited.
119
Leggott v Barrett (1880) 15 Ch D 306 at 311; Ex parte Dawes (1886) 17 QBD 275 at 286;
OLoughlin v Mount (1998) 71 SASR 206 at 21718; Chacmol Holdings Pty Ltd v Handberg
[2005] FCAFC 40 at [38][46].
How t o Draf t Modern Document s 219
to delete the clauses to be amended, and then include their full text as
amended. Another option is to state the overall effect of the amendments,
and then set out the detailed textual amendments in a schedule.
To illustrate the latter technique, imagine a large residential develop-
ment where the freeholder has let the entire site on a long lease to a
housing association. The lease identies an area of the land for special-
needs housing to be underlet to a mental health trust, which will man-
age the units in that area. The scheme is now to change in the following
way: the land allocated for special-needs housing is to be altered, and the
housing association itself is to manage the units with the help of special-
ist staff. To achieve these changes will require numerous amendments to
various parts of a lengthy document. A deed of variation merely making
textual amendments to the original documentation is likely to be incom-
prehensible. Far better to state the effect of the new arrangements boldly
in the body of the deed, and then to put the textual amendments in a
schedule.
Standard forms
We end this chapter with some comments on the use of standard forms
in legal drafting. More and more in modern legal practice, information
is conveyed by means of standard forms. Sometimes, the use of forms is
prescribed by statute, leaving the drafter with little scope for presenting
material more effectively. At other times, their use is optional.
Statutory forms
Model forms provided by statute have been widely available to the legal
profession for many years. In England and Wales, for example, the Settled
Land Act 1925 set out in its rst schedule examples of instruments framed
in accordance with the provisions of this Act. Another Act, the Law of Prop-
erty Act 1925, contained forms relating to mortgages and other matters.
The purpose was to provide forms that would be treated as effective for
the objective in mind. Thus the Law of Property Act provided that instru-
ments in the like formor using expressions to the like effect, shall, in regard
to form and expression be sufcient. Many other jurisdictions have statu-
tory provisions in the same vein. Generally speaking, however, the legal
220 Modern Legal Draf t i ng
profession has been reluctant to accept the statutory invitation to use forms
of this kind. For whatever reason, lawyers have preferred to produce their
own forms.
Forms used for land registration purposes are in a different category.
Their use is generally mandatory, for the land registration system hinges on
their use.
120
These forms generally abandon the mumbo jumbo that bedev-
ils traditional conveyancing documents, being drafted on the premise that
instruments (and entries in the register based on them) should be clear,
simple and denite. They contain no formal commencement; recitals are
discouraged; lengthy clauses transferring quasi-easements and other appur-
tenant rights are absent; and the testatum, habendum and testimonium
(discussed above) are discarded. In short, they reect an appreciation that
both the form and language of traditional conveyancing documents are
needlessly complex.
Even where the use of statutory forms is mandatory, some exibility is
generally allowed in their use. Statutes usually authorise the use of forms
substantially to the same effect as the prescribed forms. This permits forms
to be modied to suit the particular transaction, but it can give rise to
disputes over whether a form as varied is substantially the same as the
form as prescribed.
121
Precedents
Of course, not all forms are generated in response to statutory prompting.
Most legal rms have standard forms generally called precedents from
which they tailor documents for particular transactions. Sometimes these
precedents are based on forms provided by publishers; sometimes they are
drafted by the rm itself. Standard forms of this kind are a necessary part of
the modern lawyers practice, but they should be drafted in clear, modern
English, in line with the principles advocated here.
120
In England and Wales, the forms spring from the Land Registration Act 2002. In Australia,
they are promulgated under the various Torrens title statutes, such as the Real Property
Act 1900 (NSW).
121
For Australian examples, see Perpetual Executors and Trustees Association of Australia Ltd
v Hosken (1912) 14 CLR 286; Crowley v Templeton (1914) 17 CLR 457; Gibb v Registrar of
Titles (1940) 63 CLR 503.
How t o Draf t Modern Document s 221
Conclusion
This chapter has reviewed some of the matters to be considered when
drafting in standard, modern English. The list of techniques it discusses
is not exhaustive. Some drafters use other techniques in their documents.
However, the principles set out in the chapter will help drafters produce
documents that are easy to understand and exhibit that level of precision
which the traditional style of legal drafting so fervently praises but so often
fails to achieve. But of course technique alone does not ensure a sound
legal document. The drafter must also knowthe law. Further, when drafting
in modern, standard English or plain English the drafter must be alert
to context, since (as we pointed out in Chapter 2) context is crucial to the
meaning of words. As Lord Wilberforce once famously commented, even
plain English may contain a variety of shades of meaning.
122
122
Williams & Glyns Bank Ltd v Boland [1981] AC 487 at 504.
Chapter Seven
USING THE MODERN STYLE
In earlier chapters we have discussed the many benets of drafting legal
documents in modern, standard English. In this nal chapter we give step-
by-step examples of drafting in the modern style. We illustrate with clauses
drawn from four types of private legal documents, all commonly encoun-
tered in legal practice: leases, company constitutions, wills and conveyances.
Lease: how to bring it to an end if the
property is damaged
Original version
If the whole or a substantial part of the Premises shall at any time during
the Term be destroyed or damaged then the Landlord shall have the right at
any time before rebuilding or reinstatement shall have commenced to give
notice in writing to the Tenant to determine this Lease and at the expiry of
one month fromthe service of such notice the Termshall cease and determine
but without prejudice to any claim for any antecedent breach of the Tenants
covenants herein contained (and if the tenancy is one to which Part II of the
Landlord and Tenant Act 1954
1
applies then a statutory notice in the form
required by that Act shall also operate as notice under this sub-clause).
1
This Act applies in England and Wales only.
222
Usi ng t he Modern St yl e 223
This clause exudes many characteristics of traditional legal writing:
r
use of shall
r
unusual tenses: shall have commenced
r
use of capital letters to indicate dened terms: the Term, this Lease
r
unnecessary doublets: destroyed or damaged, rebuilding or reinstate-
ment, cease and determine
r
lack of punctuation
r
such used as an adjective
r
unusual word order: herein contained
r
avoidance of pronouns
r
pomposity: commenced, determine, antecedent
r
special meaning for words in ordinary use: determine
r
antique words no longer in ordinary use: herein
r
tautology: a statutory notice in the form required by that Act
r
legal jargon: without prejudice to.
Plain version
The original version can be rewritten:
(a) If a substantial part of the premises becomes damaged, the Landlord
may give the Tenant written notice to bring this lease to an end.
(b) The Landlord must serve the notice on the Tenant before the Landlord
begins to reinstate the premises.
(c) The lease ends a month after service of the notice, but the Landlord
may still pursue any claim against the Tenant for breaches occurring
before the lease ends.
This version does not attempt to deal with the bracketed words in the
original, because their meaning is not clear. If the drafter meant by them
that the notice is to dovetail with the 1954 Act, then a further paragraph
could be tried, along these lines:
(d) If the tenancy is one to which Part II of the Landlord and Tenant Act
1954 applies, a notice under that Act may also constitute a notice
under this sub-clause and the date of termination specied is the date
on which the lease ends.
224 Modern Legal Draf t i ng
Two chief points arise from an exercise such as this. First, the rewrite
forces a fundamental reappraisal of the original: as Robert Eagleson has
said, To write plainly means to return to the heart of the matter.
2
Second, difculty in rewriting may indicate fundamental problems with
the subject matter. Several such problems emerge here. One concerns the
bracketed words in the original version. The review forces the conclusion
that a notice under the 1954 Act serves one purpose, and a notice to bring
the lease to an end following a disaster serves another. To elide the two types
of notice, as though one notice can perform the two functions, confuses
rather than helps. It would be best to omit the bracketed words and the
new paragraph (d) altogether. The other problem concerns the terms give
a notice and serve a notice. Para (a) of our rewrite entitles the landlord
to give a notice, while para (b) requires the landlord to serve the notice.
In using these terms we have preserved the terminology of the original. In
legal theory, however, serving a notice is not synonymous with giving a
notice; service requires certain formalities that are not necessarily needed
for a notice merely to be given.
3
The drafter seems to have muddied the
distinction. Here, context resolves any ambiguity: the notice is not given
unless it is served. But to avoid any possible argument, the drafter could
have used served in para (a).
Company memorandum of association: subsidiary
objects clause
Original version
To improve, manage, construct, repair, develop, exchange, let on lease or
otherwise, mortgage, charge, sell, dispose of, turn to account, grant licences,
options, rights and privileges in respect of, or otherwise deal with all or any
part of the property and rights of the Company.
This clause illustrates the lawyers love for lists. Rather than choose one
word that covers the eld (but is no wider than necessary), the drafter
compiles a list of near-synonyms in the hope of hitting the target. This
2
Robert Eagleson, Plain English in the Statutes (1985) 59 Law Institute Journal, p. 673.
3
See FAI General Insurance Co. Ltd v Parras (2002) 55 NSWLR 498.
Usi ng t he Modern St yl e 225
technique Rudolf Fleschcalledthe shotgunprinciple of legal drafting.
4
Much
to be preferred is Dickersons lowest common denominator approach,
5
under whichthe drafter tries to select a word or words to cover the particular
group or activity intended but no more.
Plain version
Using the Dickersonapproach, the original canbe recast inordinary English,
thus:
To deal with the companys property in any way.
The rewriting takes account of the following points:
r
Deal with adequately encompasses actions that relate to the physical
nature of the property and its title. Thus, it covers improve, manage,
construct, repair, develop, exchange, let (onlease or otherwise), mortgage,
charge, sell, dispose of, turntoaccount, grant licences, grant options, grant
rights and grant privileges.
6
Nor is deal with too wide for the purposes
of the clause.
r
In respect of is unnecessary
r
The property, without further elaboration, implies all or any part of it.
r
The companys rights are part of its property, so they need not be men-
tioned separately.
Will: attestation clause
Original version
Signed by the above-named Sarah Smith as her last will in the presence of
us present at the same time who at her request in her presence and in the
presence of each other have hereunto subscribed our names as witnesses.
Attestationclauses inwills are designedtoshowthat the statutoryrequire-
ments for signing (executing) wills have been satised. Most jurisdictions
4
Rudolph Flesch, How to Write Plain English (New York: Barns & Noble Books, 1979), p. 41.
5
ReedDickerson, Fundamentals of Legal Drafting, 2ndedn(BostonandToronto: Little, Brown
& Co., 1986), p. 18.
6
Deal with is a term of wide import, and includes bargains or arrangements for mutual
advantage: GPT RE Ltd v Lend Lease Real Estate Investments Ltd [2005] NSWSC964 at [41].
226 Modern Legal Draf t i ng
impose statutory requirements onexecuting wills. InEnglandandWales, for
example, the requirements are set out in s 9 of the Wills Act 1837 (replaced
by s 17 of the Administration of Justice Act 1982, for wills taking effect after
1982). The section reads as follows:
No will shall be valid unless
(a) it is in writing, and signed by the testator, or by some other person in his
presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the
will; and
(c) the signature is made or acknowledged by the testator in the presence of
two or more witnesses present at the same time; and
(d) each witness either
(i) attests and signs the will; or
(ii) acknowledges his signature,
in the presence of the testator (but not necessarily in the presence of
any other witness),
but no form of attestation shall be necessary.
7
Notice that, while various permutations of acknowledgement or signature
are possible, the statute specically provides that no form of attestation is
necessary. Nonetheless, every professionally drawn will contains an attes-
tation clause, because without one the probate authorities usually require
an afdavit stating that the will has been executed in accordance with the
statutory formalities.
Plain version
Here is a redraft of the original version:
Signed by the testator in our presence and attested by us in the presence of
her and of each other.
This was the form judicially approved in Re Selby-Bigge, the judge express-
ing the view that to save labour and for the sake of neatness, skilful prac-
titioners desire to reduce words to the minimum.
8
In practice, probate
7
The layout of the nal line (taken back to the left margin) is nonsensical, but is precisely as
appears in the Law Reports (Statutes) version. It is not a model to be followed.
8
Re Selby-Bigge [1950] 1 All ER 1009 at 1010.
Usi ng t he Modern St yl e 227
ofcials accept an even shorter form, enabling them to see at a glance that
the statutory provisions have been satised:
Signed by the testator in our presence and then by us in his.
Where the testator is female, the circumspect drafter may prefer testatrix
to testator. But in modern English, testator has become gender-neutral,
like actor, juror, prosecutor, administrator and executor. In any case, no judge
would be perverse enough to rule a will invalid on the ground that a female
deceased had executed her will as testator, especially in the face of the com-
mon statutory provision that in all documents the masculine includes the
feminine and vice versa.
9
Will: distribution in unequal shares
Original version
In trust to divide the same into ten equal shares (and the words share or
shares in this clause shall be always read as referring to such equal shares)
and to hold one share in trust for my niece Doris Joffry and to hold one
share in trust for my nephew Kenneth Hone and to hold one share in trust
for my niece Meg Martini and to hold one share in trust for my niece Dora
Wills and to hold one share in trust for my niece Phyllis Steiner and to hold
one share in trust for my niece Ruth Ellis and to hold one share in trust for
my nephew Raymond Hone and to hold the remaining three shares in trust
for my niece Rose Hecker Provided that if any of the trusts declared by this
clause shall fail then the share or shares as to which the said trusts shall so
fail (including any share or shares accruing by virtue of this provision) shall
accrue to and be added equally to the other shares hereby given and be held
in trust accordingly.
The formof this clause one long, unpunctuated sentence makes it partic-
ularly difcult to read. Further, the proviso is obscure. One way of divining
meaning is to attempt a redraft.
9
In England, see s 61 of the Law of Property Act 1925. In New South Wales, see s 181 of the
Conveyancing Act 1919. See also Robin Towns, Plain English (1998) 142 Solicitors Journal,
p. 821. For gender-neutral drafting, see Chapter 6.
228 Modern Legal Draf t i ng
Plain version
To divide it as follows:
r
one-tenth for my niece Doris Joffry
r
one-tenth for my nephew Kenneth Hone
r
one-tenth for my niece Meg Martini
r
one-tenth for my niece Dora Wills
r
one-tenth for my niece Phyllis Steiner
r
one-tenth for my niece Ruth Ellis
r
one-tenth for my nephew Raymond Hone
r
three-tenths for my niece Rose Hecker.
If any of those beneciaries dies before me, his or her share is to be added
equally to that of the survivors.
The clause still poses some difculties. Where Rose Hecker survives, but
one or more of the others does not, the relationship between the shares
changes. If one of the lesser beneciaries dies, Rose Heckers share becomes
a little under three times what the others receive. If all but one of the other
beneciaries dies, three-tenths accrue to the lesser beneciary and three-
tenths to Rose Hecker. The lesser beneciary then ends up with two-fths
and Rose Hecker with three-fths. To preserve the original relationship
between the shares, an entirely different wording would be needed for the
closing sentence:
If any of those beneciaries dies before me, his or her share is to be added to
those of the survivors inthe same mathematical relationshipthat the specied
shares of the survivors bear to each other.
Toillustrate this redraft: if Rose Hecker survives withonly one of the lesser
beneciaries, six-tenths are available to split between them in the ration of
1:3. Thus, three-twentieths go to the lesser beneciary and nine-twentieths
to Rose. Add those fractions to their direct fractions, and the lesser bene-
ciary gets ve-twentieths (one-quarter) and Rose fteen-twentieths (three-
quarters). Assuming this is what the testator intended, a plainer wording
might be:
If any of those beneciaries dies before me, the fund is to be divided between
the survivors in the same ratio that their shares specied in this clause bear
to each other.
Usi ng t he Modern St yl e 229
Or even shorter:
If any of those beneciaries dies before me, the fund is to be divided between
the survivors in the same ratio.
Or perhaps even better:
If any of those beneciaries dies before me, the fund is to be divided between
the survivors proportionately.
New land obligations: buyers restrictive covenant
Original version
THE Purchaser to the intent and so as to bind the property hereby conveyed
and each and every part thereof into whosesoever hands the same may come
to protect such parts of the adjoining or neighbouring land and premises
situate at Exon in the said County of Devon and forming part of the Ven-
dors Blueacre Estate as for the time being remains unsold or as shall be sold
with the express benet of this covenant as are capable of beneting HEREBY
JOINTLY AND SEVERALLY COVENANTS with the Vendor that the Pur-
chaser andhis successors intitle will at all times hereafter observe andperform
the following restrictions stipulations and conditions
Plain version
This example of legalese could be recast in ordinary English, as follows:
(a) To burden the property and to benet the retained land, the buyers sep-
arately and together promise the seller that they will observe the stipula-
tions which follow.
(b) The retained land is every part of the sellers Blueacre Estate, Exon,
Devon that is near the property and is capable of beneting from this
promise, and that either remains unsold or has been sold expressly with
the benet of this promise.
Two commonly used phrases in the original version merit detailed
analysis: each and every, and jointly and severally. Like other doublets,
their use should always be questioned (see Chapter 1).
230 Modern Legal Draf t i ng
Each and every
This doublet appears often in traditional legal drafting. The two words are
closely related: each derives fromthe Old English aelc, and every fromthe
Old English aefre aelc. There could be no objection to using either each or
every by itself. But is the doublet necessary? The drafters particular concern
seems to have been the consequences of later subdivision of the land. Is the
covenant to burden the purchased land as a whole only, or is it to burden
also any parcels into which it might later be subdivided? And is the covenant
to benet the adjoining or neighbouring land as a whole only, or is it to also
benet that land if it is later subdivided? Under the present law, subdivision
of the land burdened or of the land beneted does not, of itself, prevent the
burden or benet from passing on later transfer of the subdivided parts of
those lands.
10
But the law in this area is complex, and the drafter does well
to clarify the position and to set out the scheme as the client would like it
to be. Nevertheless, the drafters purpose could be achieved just as well by
referring to each part or to every part, without recourse to the uncritical
each and every.
A related drafting point concerns the interpretation of any part as in a
prohibition against dealing with any part of premises. Drafters frequently
expand the prohibition into one against dealing with the whole or any part
of the premises. But since the sum of the parts is the whole, a prohibition
against dealing with any part of a property necessarily prohibits a dealing
with all of it.
11
A drafter who wants to prohibit a dealing with part only
should say so directly, by using such words as not to deal with part only of
the premises.
Jointly and severally
Jointly and severally is a phrase found rarely in ordinary English. Yet it
features prominently in legal documents. An example is the following boil-
erplate from a lease:
10
Burden, Law of Property Act 1925, s 79; benet, s 78. See Federated Homes Ltd v Mill Lodge
Properties Ltd [1980] 1 WLR594, CA; Roake v Chadha [1984] 1 WLR40; Shropshire County
Council v Edwards (1983) 46 P & CR 270; Gyarfas v Bray (1990) NSW ConvR 55519;
P. Baker, The Benet of Restrictive Covenants (1968) 84 Law Quarterly Review, p. 22;
D. Hayton, Restrictive Covenants as Property Interests (1971) 87 Law Quarterly Review,
p. 539.
11
Field v Barkworth [1986] 1 WLR 137.
Usi ng t he Modern St yl e 231
Where two or more persons are included in the expression the Landlord and
the Tenant, covenants expressed to be made by the Landlord and the Tenant
shall be deemed to be made by such persons jointly and severally.
Jointly and severally has no legal magic. It simply means together and
separately. Where more than one person is under an obligation jointly
and severally, the obligation can be enforced against them all collectively
or against any one of them individually; and a release of one joint obligor
releases them all. Likewise, where more than one person is given a duty or a
power jointly and severally, the duty or the power can be exercised by them
all collectively or by any one of them individually.
12
Drafters who persist in using jointly and severally should realise that the
phrase bears little meaning for the lay reader. They should also appreciate
that it may create an ambiguity where an obligation is entered into jointly
and severally by or with more than two persons, say X, Y and Z. There
can be no doubt that the obligation is by X, Y or Z separately, and X, Y
and Z collectively. But what about X and Y together, or X and Z, or Y and
Z? A court would probably hold that these combinations must submit to
the obligation. Nevertheless, the matter is not free from doubt. The drafter
couldremove that doubt by substituting for jointly andseverally the phrase
separately, together or in any combination.
Conclusion
These and similar examples indicate the direction for legal drafters. They
show that legal documents can be drafted in standard, modern English
without loss of legal precision. The challenge to those who oppose mod-
ernising legal drafting is then apparent: why should the lawuse the language
of yesterday? Why should legal language be subject to special rules, locked
in a unique linguistic code accessible only to those with the key?
We have sought toexplainwhylegal documents are draftedinatraditional
style, and why moves to improve drafting techniques are so compelling. We
have shown howthe traditional style of drafting hinders understanding and
12
Although context may require otherwise: see Kendle v Melsom (1998) 72 ALJR 560, where
the Australian High Court held that receivers appointed jointly and severally had to act
together.
232 Modern Legal Draf t i ng
creates dangers for lawyers and clients alike. In contrast, modern, standard
English helps improve understanding and remove the dangers. And impor-
tantly, modern, standard English can be as legally effective and linguistically
precise as traditional legal language. Nothing inlogic or lawstands inthe way
of using modern, standard Englishinthe legal documents of the twenty-rst
century. Using the techniques we have outlined, todays lawyer can produce
documents that are clear, accessible and litigation-proof.
FURTHER READING
The following are some of the many books on legal drafting. We have listed only those
that emphasise the benets and techniques of drafting in standard, modern English or
plain English as it is usually described. We list them alphabetically by author, allowing
us to sidestep the invidious task of ranking them in order of merit.
Adler, M., Clarity for Lawyers (The Law Society of England and Wales, 1990; 2nd edn,
2006). A practical guide to clear drafting, written for practising solicitors by a
practising solicitor and former chair of Clarity.
Asprey, M., Plain Language for Lawyers (3rd edn, Federation Press, 2003). The standard
Australian text, combining theory with practical insights.
Child, B., Drafting Legal Documents (2nd edn, West, 1992). A student text, with many
illustrations from case law and legal documents.
Dick, R., Legal Drafting in Plain Language (3rd edn, Thomson Canada, 1995). Apractical
guide for lawyers, written by one of Canadas best-known authors on the subject.
Dickerson, R., Fundamentals of Legal Drafting (2nd edn, Little, Brown and Co., 1986).
A highly inuential text, although encouraging a style which today might seem
somewhat conservative.
Eagleson, R., Writing in Plain English (AustralianGovernment Publishing Service, 1990).
Anexcellent guide toplainwriting, designedprimarilyfor the Australiancivil service
but of universal application.
Garner, B., The Winning Brief (Oxford University Press, 1999). A practical discussion of
100 tips for persuasive briefs. Aimed chiey at American advocates, but with many
practical insights for lawyers generally.
A Dictionary of Modern Legal Usage (2nd edn, Oxford University Press, 2001). The
classic American guide to legal usage, by an author with deep learning and a keen
appreciation of the techniques of drafting in modern, standard English. A work of
erudition and wit.
(ed.), Scribes Journal of Legal Writing (West Publishing). An occasional journal, with
articles by leading lawyers with expertise in writing.
Good, C. E., Mightier thanthe Sword(BlueJeans Press, 1989). Ahighlypractical discussion
of the principles of clear legal writing.
Kimble, J. Lifting the Fog of Legalese: Essays on Plain Language (Carolina Academic Press,
2006). A collection of essays by a leading exponent of plain language.
233
234 Fur t her Readi ng
Law Reform Commission of Victoria, Plain English and the Law (Victorian Government
Printer, 1987). An in-depth report on the use of plain language in law, which
inuenced the plain language movement in many parts of the world.
Macdonald, R. and Clark-Dickson D., Clear and Precise Writing Skills for Todays Lawyer
(Queensland Law Society, CLE Department, 2000). A clear discussion of legal-
writing skills for the modern lawyer.
Mellinkoff, D., The Language of the Law (Little, Brown and Co., 1963). A scholarly
and highly-readable history of legal language, making a classic argument for plain
language.
Legal Writing: Sense and Nonsense (West Publishing, 1982). More of a how to than
the same authors Language of the Law.
Piesse, E., The Elements of Drafting (10th edn, Lawbook Co., 2004, ed. Aitken, J. and Butt,
P.). A practical introductory work, written for students but also useful for readers
seeking an overview of legal drafting principles.
Ross, M., Drafting and Negotiating Commercial Leases (4th edn, Butterworths, 1994). A
thorough, clause-by-clause review of the contents of a modern commercial lease,
with plain language precedents developed by the author and Richard Castle.
Wydick, R., Plain English for Lawyers (5th edn, Carolina Academic Press, 2005). A step-
by-step lawyers guide to plain writing. Began life as a highly inuential law review
article, later expanded into this (short) book.
INDEX
absolutely, 27
active voice, 153
accumulation of clauses, 103
ad valorem, 35
Adams, John E., 193, 204
Adler, Mark, 86
agreed and declared, 30
agrees and warrants, 30
aircraft lease, 81
Alberta reforms, 108
Aldridge, Trevor, 123
algebra, use of, 44, 194
allow, 169
ambiguity,
avoidance, 22
syntactic, 207
amendment of documents, 165,
218
and, 211
and/or, 214
any part, 230
Anglo-French, 24
armchair principle, 70
Atkin, Lord, 109
attestation clause in will, 225
Australia
consumer protection, 123
plain English in, 93, 123
statutory requirements, 123
background
contract, to, 67
deed, to, 218
bar charts, 194
Bentham, Jeremy, 2, 76
best endeavours, 140
in professional undertakings, 141
boilerplate, 170
bond, archaic, 45
brackets, 185
Bridgman, Orlando, 13
Brougham, Lord, 2, 34
business commonsense, 63
Canada, plain English in, 106
capitals, 144, 145
effect on reader, 160
historic use, 144
inuence on interpretation, 162
overuse, 147, 166
Carroll, Lewis, 155
cases,
as aids to interpretation, 149
dangers, 39, 73, 135
Caxton, William, 18
Central French, 24
Centre for Plain Legal Language, 96
certainty, 76
charge, 31
charitable or benevolent, 211
charts, 194
chattels, 28
Child, Barbara, 104
civil procedure rules, 92
in US federal court, 106
Clarity (organisation), 85
Coke, Edward, 109, 217
colons, 186
commas, 184
commercial interpretation, 62
235
236 I ndex
common law traditions, 9
company
constitution, 224
subsidiary objects clause, 224
takeovers code, 95
computers, inuence on drafting, 18
conservatism of legal profession, 9
construction of documents see
interpretation
consumer movement, 78
consumer protection, 121
context, importance, 39, 61, 62, 64, 213,
221
contra proferentem rule, 58
contract, background to, 67
conventions, linguistic, 151
Coode, George, 76
cover sheets, 176
Crystal, David, 152
Cutts, Martin, 80, 82
dashes, 185
Davy, Derek, 152
de bene esse, 142
deal, heart of the, 170, 217
declaration, 30
deeds, 216
deeming, 154
dened terms, signalling, 189
denitions
alphabetical lists, 189, 190
examples and descriptions contrasted
with, 190
excessive detail, 158
highlighting, 189
inuence on interpretation, 162
location, 188
one-off denitions, 156
over-dening, 156
stretched, 155
stuffed, 158
unless the context otherwise requires,
159
use, 187
Denning, Lord, 2, 10, 109
descriptions contrasted with denitions,
190
design, 172
diagrams, 194
Dickerson, Reed, 22, 48, 103, 225
dictating machines, effect on drafting, 20
discharge, 31
document structure, 170
documents
amendment to, 165, 218
cover sheet, 176
design, 45, 113, 172
examples in, 198
gender usage in, 209, 227
headings, 173
layout, 172, 174
length, payment by, 31
line spacing, 173
means of production, 17
navigation through, 174
notes in, 198
numbering systems, 176
payment for, 31, 36
present tense, use in, 215
production, means of, 17
read as whole, 51
reading ease, 174
shall in, 131, 200
singularly inelegant, 46
structure, 170
white space in, 173
dwelling-house,149, 163
each and every, 230
Eagleson, Robert, 93, 224
easement,
drafting, 9
examples, 100, 182
meaning, 30
right of way, drafting, 130
easements, rights and privileges, 30
eiusdem generis rule, 52
en ventre sa mere, 142
enjoy,29, 80
equity, language of, 26
Evershed, Lord, 13
eviction notice, 99
examples, use in documents, 198
excepting and reserving,7, 29
I ndex 237
exception, nature of, 29
executors oath, 146
explanations contrasted with denitions,
190
expressio unius rule, 56, 158, 206
factual matrix,48, 63
fair trading, see Ofce of Fair Trading
Farrand Committee, 87
familiarity with legal documents, 7
fee simple, 8
feeding the estoppel, 217
Felsenfeld, Carl, 103
ttings, 28
xtures and ttings, 28
xtures, removal, 165
Flesch, Rudolf, 225
ow charts, 194, 196
folio, 33, 36
for identication only, 138, 151, 192
force majeure, 142, 170
foreign phrases, 141
forms
land registration, 220
precedents, 220
standard, 72, 219
statutory, 219
formulas, use of, 43, 194, 197
forthwith, 141
free and uninterrupted, 29
freed and discharged, 31
freehold, 8
French
Central French, 24
law French, 24
use in documents, 23
full and sufcient, 31
full set, 186
Garner, Bryan, 106
gender, usage, 227
gender-neutral language, 209, 227
generality, 203
gobbledegook, 45
golden rules of interpretation, 61
Goode, Roy, 49
goods and chattels, 28
Gowers, Ernest, 23, 87
graphs, 194
guarantee, gobbledegook, 45
Gullivers Travels, 11
habendum, 217
habit, drafting by, 7
Hale, Matthew, 32
handwriting, documents produced
by, 17
headings, 173
heart of the deal,170, 217
hereby, 148
Hoffmann, Lord, 7, 43, 63, 67, 109, 155,
197
hold and enjoy, 29
Hoole, Arthur, 120
Humpty Dumpty, 155
implied terms, 48
in fee simple, 8
Indian Penal Code, 77
inelegance, 46
innitive splitting, 139
Inland Revenue, 90
insurance policy, 81
cobbled together, 41
criticism, 111
inter alia, 142
inter se, 142
inter vivos, 142
international reforms, 78
interpretation
capitals, inuence of, 162
cases, use in, 39, 73, 135, 149
commercial or purposive, 62
consistent terminology, 61
contra proferentem rule, 58
denitions and, 162
eiusdem generis rule, 52
expressio unius rule, 56, 158, 206
golden rules, 61
internal and external factors, 48
noscitur a sociis rule, 57
ordinary word sense, 61
principles, 47, 51, 66
wills, 135
238 I ndex
is to, 203
inverted commas, 185
jargon, 144, 147
joint tenants in equal shares, 193
jointly and severally, 230
judges, 40, 109
criticisms by, 111
Kennan, J. H., 94
Kimble, Joseph, 106
knowledge, information and
belief, 146
land obligations, buyers covenant,
229
language
conventions, 131
gender-neutral, 209, 227
litigation about, 140
obscure, 137
languages, mixture of, 23
Latin in documents, 23
layout, 172
justication, 176
lease
of aircraft, 81
antique, 85
commercial, 123
xtures removal under, 165
licence contrasted, 50
precedents for, 123
structure, 172
termination, 222
Legal Writing Institute, 105
legalese, 144
length, payment by, 31
letter, disastrous, 42
liberty, 28
licence, lease contrasted, 50
lists, 178
dangers, 57
litigation,
environment of, 37, 140
Woolf reforms, 92
words and phrases, about, 140
Macaulay, Lord, 77
Macmillan, Lord, 61
Maher, Chrissie, 90
marketing, through plain English,
121
matrix of fact,48, 67, 72
may, 272
Megarry, Robert, 15, 186
Melinkoff, David, 12, 184, 204
modern English, 167
dened, 112
moiety, 149
mortgage in plain English, 79
must, 201
criticism, 111
must not,111, 201
mutatis mutandis, 142
National Consumer Council, 83, 113
negative, use of double, 146
negligence claims, 15
New York plain English law, 101, 102
New Zealand, 91
legislation manual, 210
tax reform, 98
nominalisation, 153
Norman French, 23
noscitur a sociis rule, 57
notes, use of, 198
notice,
defying understanding, 42
effect, 64
giving and serving distinguished,
224
eviction notice, 99
null and void, 27
numbering systems, 176
obscure language, 137
observe, 27
observe and perform, 27
Ofce of Fair Trading, 122
or, 211
ordinary sense, 61
over-dening, 156
overviews, 199
I ndex 239
paragraphing, 175
parcels clause, 205
Parker, Anthony, 78
particularity, excessive, 206
partnership deed, structure, 171
Pascal, Blaise, 21
passive voice, 173
patent applications, 71, 194
payment
by length, 31
by time, 36
perpetuity period, 158
per stirpes, 142
perform, 27
permit, 168
pie charts, 194
plain English
benets, 114, 118, 119 121
judicial criticism, 111
as marketing tool, 121
meaning, 112, 124
risks, 73
scope for, 125
Plain English Campaign, 80
Plain English Foundation, 97
Plain Language Commission, 82
plans, 191
for identication only,138, 151, 192
possessives, 185
precedents, 10
dangers in, 73
forms, 117, 220
meaning, 11
precision, 76
present tense, 215
pressures, professional, 21
Preston, Richard, 14
printing press, inuence, 18
privilege, 30
pro tanto, 142
professional image, 119
professional undertakings,
best endeavours, 140
pronouns, 208
proper proportion, 204
provisos, 163
burden of proof and, 164
negotiation, in, 165
punctuation, 139
purposive interpretation, 62
Rayner, Derek, 87
reading,
as whole, 51
capitals and, 160
ease, 160, 174
recitals, 33, 217
Reid, Lord, 40, 214
redundancy of words, 128
rent review,
absurd, 44
tortuous clause, 43
Renton Committee, 90
repair, 130
res ipsa loquitur, 142
reservation, nature of, 29
reserving,8, 129
reshippers, 104
restrictive covenant given by buyer of
land, 229
right, 28
right and liberty, 28
right of way, drafting, 130
Robinson, Stanley, 13, 57
Scandinavian inuence on legal language,
23
sense-bites, 142, 181
sentences, 142, 153, 181
shall
direction or obligation, 136
futurity or precondition, 133
Hong Kong basic law, in, 132
modern documents, in, 200
overuse, 131
shotgun principle, 225
Siegel, Alan, 104, 172
signs, 194, 195
simplied outlines, 199
sketches, 194
spacing in documents, 173
Standard Conditions of Sale, 87, 123
,
240 I NDEX
standard English, 167
meaning, 112
standard forms, 11, 72, 117, 146, 219, 220
stare decisis, 9
statutory requirements
Australia, 123
for plain English, 121
United Kingdom, 121
United States, 101
stretched denitions, 155
stuffed denitions, 158
style manual, New South Wales, 99
suffer, 168
sufcient, 31
Sullivan, Peter, 101
Swift, Jonathan, 11
Symonds, Arthur, 77
Symonds, Lord, 51
tables, 191
tautology, 23, 79, 128, 130
tax reforms, 83, 90, 98
technical terms, 149
tenancy, 62
tense, present, 215
term, 49
terminology, consistency, 61
terms of art, 149
testatum, 217
testimonium, 217
time, payment by, 36
torrential style, 7
toties quoties, 142
traditional drafting, reasons for, 6
trafc signs, 194, 195
TransAction scheme, 17, 87
trust deed, shall in, 134
type size, 175
typeface, 175
typewriters, inuence on drafting, 18
ultra vires, 141
undertaking
best endeavours, 140
to repair, 205
uninterrupted, 30
United Kingdom government, plain
English reforms, 87
United States, plain English in, 99, 104
unless the context otherwise requires,
159
use and enjoyment, 29
vagueness, 203, 204
verb,
separation of parts of, 139
use of, 153
Victoria,
Law Reform Commission, 94, 95, 112,
116
plain English in, 94
void, 27
Walton, John, 86
warrants, 30
whereas,217, 218
white space in documents, 173
whole document must be read, 51,
57
Wilberforce, Lord, 48, 159, 221
will, 135
Williams, Joshua, 33, 35
wills, 70
attestation clause, 225
distribution in unequal shares under,
227
interpretation, 70
provisos in, 163
shall in, 134
structure, 172
without prejudice, 150
Wittgenstein, Ludwig, 4
Woolf reforms, 92
word order, 138, 152
word processors, use in drafting, 18
wordiness, 120
words
consistency, 61
foreign, 141
interpretation, 61
meaning, 10
redundancy, 128